SARBJEET Vs. SAHU JAIN TRUST

JUDGEMENT

(1.) This appeal is directed against the order dated the 15th of October, 1971, by which a learned Single Judge of this Court while granting leave to the appellant to defend the suit filed against him by the respondents under Order 37, rule 2 of the Civil Procedure Code, required that the appellant may appear, file his written statement and defend the suit on furnishing adequate security for the amount in suit to the satisfaction of the Registrar of this Court. It is urged that leave to defend should have been given unconditionally.

(2.) The respondents filed a suit for the recovery of Rs. 2,50,000.00 as the principal amount and Rs. 74,257.54 P. as interest against the appellant on the 6th of March, 1971. The claim was based on three pro-notes executed on the 7th of March, 1968, 11th of March, 1968 and 29th of April, 1968, by the appellant in favour of the respondents for Rs. 1,00,000.00, Rs. 1,10,000.00 and Rs. 40,000.00 respectively. By his letter dated the 7th of March, 1968, the appellant had promised to pay the amount by the 31st of December, 1968. In the heading of the plaint it was mentioned that the suit was being filed under order 37, rule 2 of the Civil Procedure Code (hereinafter called "the Code"). At the time of the admission of the suit it was directed that the process be issued to the defendant-appellant under order 37 of the Code. After receiving notice the appellant moved LA. No. 716 of 1971 underorder 37, rule 3 read with section 151 of the Civil Procedure Code praying that he should be granted leave to defend the suit. The application was contested by the plaintiffs. Both the parties filed several documents. After hearing the parties, leave to defend the suit was granted subject to the furnishing of security by the appellant.

(3.) Three contentions have been raised before us by the learned counsel for the appellant for urging that leave should have been granted unconditionally and to the extent that it imposes the obligation of furnishing security, the order under appeal be set aside. The first contention is that the plaint was not in conformity with order 37, rule 2 of the Code and as such the suit could not be held to have been filed under that provision. The second is that the plaintiffs-respondents had not come to court with clean hands inasmuch as they had not disclosed the true circumstances which provided the background to the litigation. The third submission is that there being triable issues between the parties, leave to defend should have been granted unconditionally. The provisions contained in order 37 of the Code appear in the First Schedule and could be altered in accordance with the provisions contained in Part X thereof. Sections 121 and 122 in Part X of the Code are:-