S. K. MAL LODHA, J. - (1.) THIS is a defendant's first appeal against the judgment and decree of the Additional District Judge, Sirohi dated April 24, 1978, passed in Civil Original Suit No. 9 of 1977.
(2.) THE plaintiff-respondent No. 1 is the wife of plaintiff-respondent No. 2. THE plaintiff-respondents instituted a suit for Rs. 21,488. 50 paise against the defendant-appellant on May 20, 1977 in the Court of the Additional District Judge, Sirohi. THE suit was based on a promissory note dated September 1, 1972, which is alleged to have been executed by the defendant against the outstanding amount of Rs. 14,001/- stipulating to pay interest at the rate of Re. 1/-per cent per mensem. It was averred that Rs. 13,501. /- were due from the defendant to plaintiff No. 1 on account of principal after deducting Rs. 500/-, which Was paid by the defendant on June 27, 1974. According to the plaintiffs a sum of Rs. 7980/- was outstanding on account of interest and Rs. 7. 50 were claimed on account of notice expenses and telegram charges. It was mentioned in the plaint that plaintiff No. 1 is the original creditor, but as plaintiff No. 2 is plaintiff No. l's Mukhtiar Khas and, therefore, he was being impleaded as plaintiff No. 2. THE plaintiffs obtained summons of the defendant under the provisions of O. XXXVII, r. 2, C. P. C. and this summons was served on defendant's son on June 24, 1977. THEreafter, the plaintiffs obtained summons for judgment in a summary suit under XXXVII, r. 3, C. P. C. This summons was issued on July 23, 1977 for the hearing of August 3, 1977. On August 3, 1977, the trial court ordered that the summons should be served personally on the defendant. THE defendant submitted an application on August 18, 1977 supported by an affidavit for leave to defend. It was, inter alia stated in that application that the defendant has not received any consideration mentioned in the pronote, that he did not have any dealing with plaintiff No. 1, that the transaction was 'benami' and that the plaintiff No. 2 had remained his Advocate in various matters and as he was yielding great influence over him he got the pronote executed by him (defendant-appellant) in favour of his wife plaintiff No. 1. He prayed in the application which was supported by an affidavit that there were triable issues, under O. XXXVII, r. 3 (5) C. P. C. unconditional leave to defend the suit may be granted to him. This application was opposed by the plaintiffs by filing a reply on September 14, 1977. THE learned Additional District Judge vide his order dated January 21, 1978 reached the conclusion that the grounds on which the defendant wanted an unconditional leave to defend the suit did not disclose any substantial defence and that they were frivolous and vexatious. He however, granted leave to the defendant to defend the suit on the condition that he should furnish bank guarantee in respect of the amount in suit, interest and costs of a nationalise bank within a fortnight of his order dated January 21, 1978. In the order, it was also mentioned that in case the defendant failed to furnish the bank guarantee, as ordered, within the aforementioned time, the plaintiffs shall be entitled to a decree as per their suit. Feeling aggrieved by the order dated January 21,1978, the defendant submitted a revision petition to this Court, which was registered as S. B. Civil Revision No. 41 of 1978. When the revision petition came up for admission before this Court, Mr. Kewal Chand, appeared on behalf of the plaintiffs. This Court, after hearing learned counsel for both the parties, passed the following order on February 3, 1978 : "heard learned counsel for both the parlies. Mr. Mehta appearing for the petitioner urges that the condition of Bank guarantee imposed upon the petitioner would work out harshly against the defendant petitioner. It is not possible to interfere with that order in the revisional jurisdiction. Although if such a request would have been made before the trial Court, it might have been reasonably considered. It was then urged by the learned counsel for the petitioner that the time allowed by the trial court for furnishing the Bank guarantee is too short and should be extended, as the amount involved is considerable. The learned counsel appearing on behalf of the non-petitioner has no objection in extending the time allowed to the petitioner for furnishing the bank guarantee. The petitioner is allowed three months time to furnish the bank guarantee in terms of the order passed by the learned Additional District Judge, Sirohi which is modified only to this extent that instead of 15 days, the petitioner will have three months time from the date of that order to furnish the requisite bank guarantee. The revision application is partly allowed and the order passed by the learned trial court is modified as mentioned above. The parties are left to bear their own costs. " The defendant did not furnish any bank guarantee within the time allowed by this Court, while disposing of the aforesaid revision petition on February 3, 1978. Three months time was allowed to the defendant for furnishing bank guarantee from January 21, 1978. As the defendant failed to furnish the bank guarantee within the time allowed by this Court, the learned Additional District Judge under O. XXXVII, r. 3, C. P. C. decreed the suit of the plaintiffs by his judgment dated April 24, 1978 for Rs. 21, 481/- with costs and further allowed interest on the principal amount of Rs. 13,501/-from the date of the suit i. e. May 20, 1977 to the date of the decree i. e. April 24, 1978. He, however, did not award future interest. Against the judgment and decree of the learned Additional District Judge dated April 24, 1978, the defendant has come up in appeal to this Court as aforesaid. I have heard Mr. R. K. Shah for the appellant and Mr. P. R. Singhvi for the respondent and have also carefully gone through the record of the case.
(3.) MR. Shah, learned counsel for the appellant challenged the order of the learned Additional District Judge dated January 21,1978 and submitted that as the grounds taken by the defendant raised triable issues the defendant should have been granted an unconditional leave to defend the suit and as the condition of furnishing bank guarantee was onerous it became impossible for the defendant to comply with it and submit his written statement after the expiry of the period fixed for furnishing the bank guarantee. Learned counsel elaborated his argument that such being the position, the defendant was virtually denied the opportunity to contest the suit instituted by the plaintiffs and as the order dated January 21, 1978 granting leave to defend the suit on furnishing bank guarantee has affected the decision of the suit on merits, the judgment and decree passed by the learned Additional District Judge are not sustainable. In other words, he submitted that the judgment and decree are bad in law because in the facts and circumstances of the case, the condition for furnishing the bank guarantee could not be imposed. According to the learned counsel, he is entitled to challenge the order of the learned Additional District Judge dated January 21, 1978, though a revision against that order was preferred and it was partly allowed. Learned counsel contended that the order of the learned Additional District Judge imposing condition of bank guarantee was not interfered With by this Court, as it was not possible to interfere with that order in the revi-sional jurisdiction and therefore, the order of this Court dated February 3, 1978 would not operate as a bar in challenging the order of the learned Additional District Judge dated January 21, 1978. O. XXXVII. r. 3 (5) C. P. C. reads as under : " (5) The defendant may. at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitled him to defend, apply on such summons for leave to defend such suit and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just : Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious : Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. " The provisions of O. XXVVII, r. (3) (2) of the Civil Procedure Code, 1908 were examined by their lordships of the Supreme Court in Santosh Kumar vs. Mool Singh (1 ). It was observed in para 9 of the report as under : "all that We need say about them is that if the Court is of opinion that the defence is not bona fide than it can impose conditions and is not tied down to refusing leave to defend. We agree with Varadachartar J. , in the Madras case that the Court has this third course open to it in a suitable case. But it cannot be reach the conclusion that the defence is not bona fide arbitrarily. " It will be useful here to extract a portion from para 10 of the report, which is as under : "in general, therefore, the test is to see whether the defence raises a real issue and not a sham one, in the sence one in that, if the facts alleged by the defendant are established, there would be a good, or even a plausible, defence on those facts. " ;