GUMAM MAL LODHA, J. - (1.) THIS is a civil revision against the order dated 20. 1. 82 passed by Civil Judge, Ajmer, in Civil Suit No. 53/81.
(2.) MR. Soral's contention is that in a suit under Order 37 Rule 1 and 2 C. P. C, once the court comes to the conclusion that the issues raised by defence were triable and there was no finding of malafide or the defence being frivolous, then the court could not impose the condition of surety for permitting the defendant to defend the case. According to MR. Soral this principle has been laid down in M/s. Mechalec Engineers & Manufacturers Vs. M/s. Basic Equipment Corporation (1 ). Mr. Rastogi has raised many points. His first contention is that the suit has been decreed and the revision petition has become infructuous. In reply to it is Mr. Soral has referred to the judgment of Delhi High Court in Siri Kirshan Bardwaj Vs. Manohar Lal Gupta (2) in which it has been held that once the earlier order falls then the latter order must also fall and the decree would automatically be set aside. Mr. Rastogi's contention is that the trial court has not held that the suit is triable, that the defence raises the triable issues and further that no revision can be entertained. Mr. Rastogi has pointed out that after the passing of the impugned order, decree has been passed and therefore, the impugned order has merged into the decree. Since the decree is appealable this revision petition cannot be entertained nor because it will have effect of, in case of acceptance, setting aside the decree. In support of his contention he further submits even otherwise after amendment of Section 115 C. P. C. new section bars filing of revision because appeal lies in clause (2 ). In support of this proposition he relied on S. Amrik Singh Vs. S Jagjit Singh (3) and Ramchand Vs. Laxmi Kumar (4 ).
(3.) MR. Soral on the contrary relied upon the decision of Siri Krishan Bardwarj Vs. Manohar Lal Gupta (supra), Fatehlal Vs. Sunder Lal (5), K. S. Minakshi Vs. M. Subbalakshmi (6) and Yakub Ali Vs. Firj Haji Taji Khanji Ibrahimji (7 ). I have given a very serious and thoughtful consideration to the rival contention of the learned counsel for the parties and have perused the relevant record referred by the learned counsel during their arguments. In my opinion firstly I must consider and appreciate while directing a party to produce surety or Bank guarantee is whether there are triable issues which arises for adjudication. The following principles have been laid down in M/s. Mcchalec Engineers and Manufacturers vs. M/s. Basic Equipment Corporation (supra): "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. 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 unconditional leave to defend. 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 has 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 above 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. 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. 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 condition, and thereby show mercy to the defendant by enabling him to try to prove a defence. It is only when clause (e) applies that conditional order like the present one can be given. ;