CHAUHAN, J. - (1.) THE revision petition has been filed against the order dated 6. 7. 2001 passed by the learned Additional District Judge, Bhilwara in Regular Case No. 56/2000 granting relief to defend in summary trial under Order 37 Rule 3 of the Code of Civil Procedure, 1908 (for short, "the Code" ).
(2.) THE facts and circumstances giving rise to this case are that the present revisionist/plaintiff filed a suit on 30. 11. 2000 under Order 37 of the Code for recovery of Rs. 60,200/- from the non-petitioner/defendant with the averment that the defendant had borrowed a sum of Rs. 35,000/- on 1. 12. 97 for his personal purpose for a period of six months and he executed one promissory note and also issued a receipt for Rs. 35,000/- on the same date. On receiving the notice, defendant filed reply on 7. 4. 2001 and also prayed for leave to defend on the ground that he had not borrowed Rs. 35,000/- from the revisionist but had borrowed only Rs. 25,000/- with interest of Rs. 6/- on each hundred and he had deposited Rs. 25,000/- with interest, hence no dues were outstanding from him though he had not been issued the receipt by the revisionist. He had also taken other legal pleas that the revisionist was not having the valid licence under the Money Lending Act and, thus, he was not entitled to file the suit. An order under Order 37 Rule 5 of the Code has been passed granting leave to defend, hence this revision. Mr. Usman Ghani, learned counsel for the revisionist has contended that in a suit under Order 37, the facts involved in the case did not warrant the impugned order and, thus, it is liable to be set-aside. On the other hand, Mr. Manish Shishodia, learned counsel for non-petitioner, has submitted that the defence raised by the non-petitioner is plausible and raises the triable issues, Leave to defend can be granted unconditionally or subject to such terms as deposit of payment in the court, giving security and regarding issue or otherwise, as the Court thinks fit; thus, it confers unfattered discretion upon the trial court and such an order passed by the Court should not require interference. I have considered the rival submissions made by the learned counsel for the parties and perused the record. In Santosh Kumar vs. Bhai Mool Singh (1), the Hon'ble Supreme Court considered its earlier judgments, particularly in Sangram Singh vs. Election Tribunal, Kota (3), wherein it had been held that too technical a construction of a provision of the Code may not leave any room for reasonable elasticity of interpretation, therefore, the procedure which is designed to facilitate justice, should be interpreted for the purpose of furtherance of justice and not to frustrate it and in case once the defence is raised raising a triable issue, truthfulness thereof is to be tested by going into the evidence. The leave should be granted in a case where defence is plausible as the defence can come only if the defendant is permitted to defend the suit. The Court must determine "if the facts alleged by the defendant are duly proved, they will afford a good or even a plausible answer to the plaintiff's claim and once the Court reaches that conclusion, the leave cannot be withheld and no question of imposing condition can arise and once leave has been granted, the normal procedure of a suit, so far as evidence and proof go, obtains. In Milkhi Ram (India) Pvt. Ltd. & Ors. vs. Chamanlal Bros. (3), a similar view has been reiterated, holding that if the Court is of the opinion that the case raises a triable issue then leave should ordinarily be granted unconditionally. On the other hand, if the Court is of the opinion that the defence raised is frivolous or false or sham, he should refuse leave to defend altogether. Though no state-jacket formula can be formulated on the issue, but the Court may entertain a genuine doubt whether the defence is genuine or sham or whether, in other words, it raises a triable issue or not. Such an opinion is to be formed by the Court from the pleadings before it and the affidavit of the parties and it is not permissible for the Court to call for evidence at that stage. In case the Court comes to the conclusion that the defence is a sham one or his fantastic or highly improbable, an order putting the defendant upon terms before granting leave to defend, would be justified. Even in cases where defence is plausible but improbable, the Court would be justified in concluding that the issue is not a triable issue and put the defendant on terms while granting leave to defend.
(3.) IN M/s. Mechalec Engineers & Manufacturers vs. M/s. Basic Equipment Corporation (4), the Hon'ble Supreme Court considered a number of its earlier judgments and reiterated the principles relevant for this purpose laid down by the Calcutta High Court in Smt. Kiranmoyee Dassi vs. Dr. J. Chatterjee (5), which are as under:- " (a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bonafide or reasonable defence although not a positively good defence, the plaintiff is not entitled to sign the judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such conditions, and thereby show mercy to the defendant by enabling him to try to prove a defence. " The Hon'ble Supreme Court approved the said principles and made an observation that the aforesaid principles law down the guidelines as under what circumstances, defend is to be granted. In Mrs. Raj Duggal vs. Ramesh Kumar Bansal (6), the Hon'ble Supreme Court reiterated the same principles as under:- " Leave is declined where the Court is of the opinion that the grant of leave would merely enable the defendant to prolong the litigation by raising untenable and frivolous defences. The test is to see whether the defence raises a real issue and not a sham one, in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defence on those facts. If the Court is satisfied about that leave must be given. If there is a triable issue in the sense that there is a fair dispute to be tried as to the meaning of a document on which the claim is based or uncertainty as to the amount actually due or where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross-examine his witnesses leave should not be denied. Where also, the defendant shows that even on a fair probability he has a bonafide defence, he ought to have leave, Summary judgments under Order 37 should not be granted where serious conflict as to matter of fact or where any difficulty on issues as to law arises. The Court not reject the defence of the defence merely because of its inherent implausibility or its inconsistency. . . . . On the analogous provisions of Order 14 of the Rules of Supreme Court in England it was held that where the defence can be described as more than `shadowy' but less than `probable' leave to defend should be given. " ;