- (1.) This is a revision by the defendants against the order of the Additional District Judge, Barmer, dt/- Sept. 27, 1986, whereby in civil suit No. 9 of 1980 filed by the non-petitioner Nawal Kishor in its court for the recovery of an amount of Rs. 83,700/- as principal and 11,700/- as interest, in all Rs. 95,400/- instituted against the petitioners on the basis of an alleged Khata executed by petitioner 2 on behalf of the partnership firm petitioner 1 on April 2, 1985 after going through the accounts of various amounts alleged to have been advanced by plaintiff non-petitioner to the petitioner by various demand drafts dt/- June 18, 1984 and June 28, 1984. This suit was filed under O.XXXVII of Civil P.C. In accordance with sub-rule (1) of R.3 of O.XXXVII, the plaintiff non-petitioner served upon the defendants petitioners a copy of the plaint and annexures thereto together with the summons under R.2 of the said Order. The defendants petitioners entered their appearance before the Additional District Judge, Barmer on May 3, 1986 and filed his address for service of notices on them. The plaintiff's counsel was then directed to serve on the defendants petitioners a summons for judgement in form No. 4A in Appendix B. In pursuance thereof the defendants made an application under O.XXXVII, R.5 of the Civil P.C. for leave to defend the suit instituted by the non-petitioner. In his application for leave to defend, the petitioner 2 had requested that leave may be granted without attaching any condition of giving security. The Additional District Judge, Barmer by his order dated Sept. 27, 1986, decided this application and granted leave to the petitioners to defend the aforesaid suit filed by the non-petitioner. The Additional District Judge, however, imposed a condition that the petitioners shall give security within 10 days to the effect that in case the plaintiff's suit was decreed, the surety would also be liable to pay the decretal amount. It is against this order of imposing the condition of giving security that the defendants have come in revision to this Court.
(2.) I have heard Mr. Suresh Shrimali appearing for petitioners.
(3.) At the outset, I may mention the reasons given by the Additional District Judge, Barmer in his impugned order for imposing the condition of giving security on the petitioners. The defendants while disclosing facts sufficient to entitle them to defend, mentioned in their application under O.XXXVII R.5 of the Code that the Khata dt/- April 2, 1985 on the basis of which the suit had been filed by the non-petitioner was forged one and has been fabricated in collusion and that it does not bear the signatures of Arjundas defendant 2. The Additional District Judge observed that on Sept. 11, 1986 a Police Inspector of Police Station Halol in Gujarat had come to the court in connection with a case lodged with regard to the fabrication of this document and had, with the permission of the court, taken a photo-copy of the document. He then proceeded on to state that although this fact does not affect the merits of the case, but the plea of the petitioners that the document was a result of some conspiracy or was fabricated would be a matter which would be clear only after the evidence is recorded. According to him in case where there is no substantial defence, leave to defend should be granted on giving of security by the defendant. On this basis, the Additional District Judge imposed the condition on the defendants to furnish the security as aforesaid. This matter had come for consideration in the case of Sundaram Chettiar v. Valli Ammal reported in AIR 1935 Mad 43. In that case Valli Ammal respondent had filed a suit on promissory note against Sundaram Chettiar claming Rs. 3150/-, the face value of the promissory note being Rs. 4,000/-. She was unable to produce the promissory note and sued for the lesser amount upon the ground that the defendant had made a part payment of Rs. 1,000/-. As regards inability to produce the promissory note she stated that she had parted with the promissory note because the defendant took it away in order to get the endorsement of the payment of Rs. 1000/- and he refused to return it to her. The defendant put an application for leave to defend supported by an affidavit wherein he raised a plea that he had made a part payment of Rs. 950/- only and not Rs. 1000/- and the same had been accepted by the plaintiff in full satisfaction of the promissory note for the reason that the plaintiff together with a number of other creditors of the defendants had agreed to accept payment of four annas in the rupee which was having by a written composition. The Master was of the opinion that this defence was not bona fide or he had doubts as to the bona fide nature of it and he accordingly gave a conditional leave to defend that condition being that the defendant should within one week of the date of the order pay into court the full amount claimed in the Court. His Lordship Beasley C.J. who delivered the judgement of the Bench referred to two English decisions reported in (1901) 85 LT 262 and (1932) 2 KB 353 and also earlier decision of the Madras High Court in AIR 1924 Mad 612 and observed as under :- "The position to my mind is clear although it may be one which leads to an unfortunate result in some cases. If a defendant sets up a defence in his affidavit in support of his application for leave to defend which if he could succeed in proving would entitle him to succeed in the suit, then the Master of the Court before whom the application comes has no discretion whatsoever in the matter and any conditional leave to defend must be granted. A triable issue in such a case has been raised by the defendant and it is not open to the Master or anybody else other than the trial Judge to go into the merits and discover whether that case is true one........ The defendant denies this and says that by agreement the part payment was accepted by as complete discharge and that in consequence of this arrangement in part payment he got possession of the promissory note. Clearly there are two issues to be tried. I am, therefore, of the opinion that orders made by the learned Master and by Sen, J. were wrong and that any conditional leave to defend ought to have been given. The Supreme Court in Santosh Kumar v. Bhai Mool Singh reported in AIR 1958 SC 321 observed through his Lordship Vivian Bose, J. that it is always undesirable and indeed impossible to lay down hard and fast rules in matters that affected discretion. But it is necessary to understand the reason for a special procedure of this kind in order that the discretion may be properly exercised. His Lordship referred to the decision of the Madras High Court in Sundaram Chettiar's case (supra) and stated that the matter was examined in greater detail in that case. It was concluded that taken by and large the object is to see that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining an early decree by raising untenable and frivolous defence in a class of cases where speedy decisions are desirable in the interest of trade and commerce. In general, therefore, the test is too show whether the defence raises a real issue and not of 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. In Santosh Kumar's case the plea of the defence was that they had paid for the goods by cash payment from time and by other cheques and the cheque in the suit had served its end and should be returned. The defendants set out the exact dates on which according to them the payments had been made and gave the number of cheques. On these facts, their Lordships held that this defence at once raised an issue of fact, the truth and good faith of which could only be tested by going into the evidence and the trial Judge had held that the defence did raise a triable issue. But according to the trial Judge it was not enough for the defendants to take up the assertions with the affidavit and they should have produced writings and documents which were in their possession and which where they asserted would prove that the cheques and payments referred to in their defence were given in payment of the cheque in suit, and in the absence of those documents, the defence of the defendants seemed to be vague. Their Lordships held that the facts given by the defendants in the affidavit were clear and precise and the defence could hardly have been clear. As the ground on which the defendants were required to give security was that the defendants did not prove their assertion before they were allowed to put their defence and as the court at the stage of leave had only to determine whether the facts alleged by the defendants are duly proved, they will afford a good or even a plausible answer to the plaintiffs claim, the leave cannot be withheld and no question about imposing conditions can arise. His Lordship referred to the decision of the House of Lords in Jacobs v. Booths Distillery Co. (1901) 85 LT 262 wherein their Lordships had said that whenever defence raises a triable issue, leave must be given and latter cases say that when that is the case it must be given unconditionally otherwise the leave may be illusory.;