WAZIR SINGH Vs. O P KAPUR

JUDGEMENT

(1.) This is a revision against an order passed by the Subordinate Judge in a suit based on a Hundi for the recovery of 3,600.00, which was brought under the provisions of Order 37 of the Code of Civil Procedure. The impugned order gave the defendants leave to defend the suit on furnishing security for an amount of Rs. 4,000.00 which had to be furnished by 2nd February, 1972. The order in question gave leave to defend because execution of the Hundi as well as receipt of consideration was denied. The suit was also claimed to be barred by time. The Suboridate Judge has given no reasons why the defendants have been called upon to furnish security.

(2.) . It is well-settled that leave to defend may be given either conditionally or unconditionally. If a triable issue is disclosed, then the Court has discretion to give leave either conditionally or unconditionally. If conditional leave is given some explanation must be forthcoming as to why conditions have been imposed. The order In question unfortunately does not disclose any reasons why the defendants have been called upon to furnish security. The defendants have come in revision before this Court on the ground that they are unable to furnish security, and, therefore, the order in question is tentamount to a decree.

(3.) . Mr. Chugh, learned cousel for the respondent has cited some authorities in which no reasons were given in ordering that the defendant should get conditional leave to defend and he submits that the subordinate Judge's decision is not rendered invalid or without jurisdiction merely because he has given no reasons in support of the order imposing conditions. Counsel has first cited United Industries v. M/s Dalwadi & Co In that case the leave to defend the suit was granted to the defendant on condition that he deposited Rs. 4,000.00. The suit in question was for the recovery of the price of bricks and leave to defend had been sought under the amended rules of the Civil Procedure Code applicable at Ahmedabad. One of the points raised before the Bench was the question whether Order 37 had been properly amended and the second point was that the trial court had not given an) reasons for imposing conditions. The Bench held that this matter was concluded by previous decisions of the Gujarat High Court which stated that it was not necessary to give reasons for imposing conditions. The basis of the previous judgment of that High Court relied upon by the Bench was that there was nothing in the Code which rendered it necessary for the Court to give a judgment while deciding whether to give leave to defend conditionally or unconditionally. I regret that I am unable to follow this judgment because the practice as far as the Courts in this part of the country are concerned is that reasons must be given. The amended provisions of Order 37 of the Code are not applicable to Delhi and the decision,of the present case is covered by the decision in Santosh Kumar v. Bhai Mool Chand, where their Lordships indicated that conditions cannot be imposed if a good and valid defence is disclosed by the affidavit supporting the application for leave to defend. Their Lordships indicated that the le at position would be as follows :-