Jammu & Kashmir High Court
Mrs. Parvinder Kaur vs Ram Lal on 2 February, 1990
Equivalent citations: AIR1991J&K5, AIR 1991 JAMMU AND KASHMIR 5
Author: R.P. Sethi
Bench: R.P. Sethi
ORDER R.P. Sethi, J.
1. Aggrieved by the order of refusal to grant permission to appear and defend in a suit filed under Section 37 of the C.P.C. passed by the Court of Sub-Judge, Jammu, this revision petition has been filed with a prayer to set aside the order impugned and grant permission to the petitioner herein to appear and defend the suit filed against her. From the facts of the case, it appears that the suit based upon the promissory note for the recovery of Rs. 5,315/- was filed against the petitioner-defendant who sought the permission of the trial Court to defend the suit in terms of Rule 3 of Order 37 of CPC. As the petition filed by the defendant was not accompanied by an affidavit, the same was dismissed by the trial Court vide the judgment impugned in this petition.
2. I have heard the learned counsel for the parties and have perused the record.
3. Suits based upon the bills of exchange, hundies and promissory notes or the suit in which the petitioner-plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant with or without interest arisen by a written contract or by an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of debt other than a penalty or suits of a guarantee where the claim against the principal is in support of a debt or on the liquidated demand only, are the suits covered by Order 37 of the CPC which have to be tried summarily. The defendant is not entitled to defend such suits unless he enters in appearance and granted permission to defend the suit in accordance with the procedure prescribed under Rule 3 of Order 37 of the CPC. Order 37 of CPC deals with summary procedure for suits covered by it with the object to abridge the proceedings providing rapidity of disposal. The provisions of the Order are merely procedural and cannot be construed as negativating or superseding the substantive rights of the debtor available to them under the ordinary law. When the defendant enters an appearance and is served a summons for judgment in the form prescribed, he has a right to pray by affidavit or otherwise permission/leave to defend the suit after disclosing such facts as are deemed sufficient to entitle him. Such a prayer when made has to be disposed of by the Court in accordance with the provisions of law. The leave petition cannot be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he had substantial defence to raise or that the defence intended to be put up by the defendant was frivolous or vexatious. In other words, the general rule is to grant leave if substantial defence is disclosed and exception is to refuse the leave only after holding that the defence raised was either frivolous or vexatious. If the defence disclosed is bona fide, the leave should be granted unconditionally.
4. In M/s. Mechalec Engineers and Manufacturers v. Basic Equipment Corpn., AIR 1977 SC 577 the following principles were directed to be followed while considering the question of granting the leave to defend:
"(a) If the defendant satisfies the Court that he bas a good defence to the claim on its merits the plaintiffs is not entitled to leave to sigh 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 bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign 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 plaintiffs claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend hut 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 or give leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence."
5. The claim of the defendant and the pleas available to them in suits covered by Order 37 of the C.P.C. cannot be snatched or taken away under the cloak or oq the hyper-technical pleas of the non-compliance of some directions of sub-rule (5) of Rule 3 of Order 37 of CPC. Justice cannot be sacrificed on the altar of technicalities and has to be dispensed with substantially and bona fide. If the pleas raised by the defendant are held to be mala fide, imaginary, without basis, frivolous or vexatious, the leave may be refused, but not otherwise. While refusing the leave, the Court is called upon to give a definite finding regarding the defence sought to be raised by the defendant and grant the leave to defend unless pleas raised are held to be frivolous or vexatious or the like.
6. In the instant case, the petitioner had specifically stated that she was the member of one of the group of a Chit Funds company started by the petitioner as a sole proprietor or as a partner and she had signed some documents including the blank hundies, upon the basis of which the present suit had been filed against her by forging one of them, it was further submitted by the defendant that she had never borrowed any amount from the plaintiff nor executed any hundi in his favour.
The promissory note was alleged to be with out consideration and had been forged by the plaintiff. It was specifically slated as they were important triable issues likely to arise in the suit, the defendant be granted the permission to defend the suit and file written statement.
The trial Court without holding the pleas of defence sought to be raised being frivolous or vexatious dismissed the application of the defendant-petitioner. The order of the trial Court, therefore, being in violation of the provisions of Order 37, Rule 3 (5) of the CPC requires to be set aside.
7. The revision petition is accordingly accepted and the impugned order passed by the Sub-Judge, Jammu on 11-2-1988 is set aside. The petitioner is granted leave to defend the suit. The trial Court shall afford the defendant No. 2 an opportunity of filing written statement and decide the suit on merits in accordance with the provisions of law. The record of the trial Court shall be immediately sent back where the learned counsel for the parties have been directed to cause their appearance on 12-2-1990.