LACHHMAN SINGH Vs. C D TANEJA

JUDGEMENT

(1.) This revision petition has been filed u/s 115, C.P C. against the order of the Subordinate Judge dt. 11-9-72 by which he has granted leave to the petitioners to defend the suit in respect of a part of the amount claimed in the suit while it has refused leave in respect of another part. The suit was instituted by Narain Dass Babar, plaintiff who is respondent No. 2 herein It was instituted against the petitioners and one Bhagwant Singh who was defendant No. 2 and who has since been given up by the plaintiff. Mr. C.D. Taneja first respondent in the revision (the original holder of the promissory notes) was defendant No. 4 in the suit. The plaintiff instituted the suit on the allegations that defendant 1, 2 and 3 executed two pronotes in favour of defendant No. 4; one being dated 15th November, 1968 for a sum of Rs. 1,800.00 and the other dated 22nd November, 1968 for a sum of 2,500.00. It was alleged that the defendants had paid Rs. 950.00 towards debts which had been adjusted by defendant No. 4 towards the first pronote of Rs. 1,800.00 (being Rs. 811.00 on account of principal and Rs. 139.00 on account of interest) and that the balance was claimed in respect of the said pronote. It was also alleged that nothing had been paid on account of the second pronote and so a sum of Rs. 2,500.00 as principal and Rs. 431.25 as interest was due on the second pronote of Rs. 2,500.00; besides Rs. 989.00 as principal and Rs. 97.40 on account of interest was due under the first pronote making a total ofRs. 4,017.65 out of which the plaintiff after giving up Rs. 17.65 filed the suit for recovery of Rs. 4,00.00 besides the future interest and costs. The suit was instituted under the summary procedure prescribed by Order 37 of the Code of Civil Procedure. On service of the summonses the petitioners filed two separate applications being one on behalf of defendant No. 1 and the other on behalf of defendant No. 3 for leave to defend the suit. They raised various defences in the applications. The applications were contested on behalf of the plaintiff.

(2.) The same were disposed of by the lower court by the impugned order. The learned lower court found that some of the defences raised on behalf of the petitioners were sham, bogus and imaginary. It, however, found substance in the pleas of payment raised by the petitioners. It was of the view that in addition to the amount of Rs. 950.00 admitted by the plaintiff to have been paid by defendants another sum of Rs. 550.00 had been paid by defendant No. 1 to the fourth defendant the assignor on by cheque. The learned lower court was, however, not satisfied with regard to the allegations of the defendants about the payment of other sums of Rs. 625.00 by cheques and Rs. 1,000.00 by cash and cheques In this way against the plea of payments of Rs. 1,625.00 the court was satisfied about the payment of Rs. 550.00 but not with regard to the rest. It, therefore, decreed the suit to the extent of Rs. 2,375.00 thereby presumably refusing leave to that extent. It, however, granted leave to defendants 1, 3 and 4 to file their written statements in respect of the balance amount. Aggrieved by this order the petitioners have filed this revision petition.

(3.) Mr. Malviya, learned counsel for the plaintiff has raised a preliminary objection to the maintainability of the revision. He contends that the court below has passed a decree for Rs. 2,375.00 and since no appeal has been filed against it the same has become final and the revision is not maintainable to have the same set aside. He has cited, Mohd. Yunus and another V, Sugra Begum and an others. AIR 1955 Hyderabad 156. In that case a Division Bench of the High Court of Hyderabad held that an order passed under Rule 11 of Order 7 rejecting the plaint was a decree and was appealable and if necessary could be reviewed and that being a specific provision for getting rid of the order it was not open to the court to exercise its inherent power under section 151 of the Civil Procedure Code . to set aside the order and thereby deprive the opposite party of the valuable right acquired by the bar of limitation. The said authority has no relevance to the facts of the present case. There is no doubt that an order refusing leave to defend the suit is subject to revision in the High Court if it satisfies the other conditions of attracting the provision of law. The impugned order has granted leave to the petitioners only to the extent of part of claim in the suit and this order is revisable at the instance of the petitioners who contend that the leave should have been granted by the court below in respect of the whole of the claim in the suit. The mere fact that the court below at the time of or after refusing leave has passed a decree for part of the amount does not have the effect of depriving the petitioners of their right to have the impugned order revised by this court in exercise of its revisional jurisdiction. There is no force in the preliminary objection and the same is rejected.