AJIT SINGH Vs. GURCHARAN SINGH

JUDGEMENT

(1.) This is a defendant's revision directed against the order of a learned Subordinate Judge 1st Class, Delhi, dated 7th November, 1966 granting him relief to appear and defend the suit in question subject to the condition that he deposits in cash by way of security the suit am aunt of Rs. 21.800.00 together with the sum of Rs. 2,000.00 on account of estimated costs on or before 24th September. 1966. It may be stated that the suit ha3 been instituted under Order 37 of the Code of Civil Procedure.

(2.) On revision, the learned counsel for the defendant has submitted that the conidtion imposed by the Court below is very onerous because the entire amount along with the estimated costs have been directed to be deposited in cash. This, according to him, is arbitrary and unjust.

(3.) The Court below has dealt with the defence and holding it to raise a triable issue granted leave, but not being impressed by the defence, it ordered the amount to be, deposited in cash. This order is obviously passed in the exercise of the discretion of the Court below and this Court on revision normally does not interfere with such discretion. It is quite correct that ordinarily the defendent is not entitled to appear and defend a suit instituted under Order 37 of the Code of Civil Procedure without obtaining leave of the Court which may be granted up- on-an application by the defendant disclosing facts making it incumbent on the holder r.f the negotiable instrument in question to prove consideration or such other facts which the Court considers sufficient to support the defendant's claim. Leave may be granted unconditionally or on terms as illustrated in Order 37, Rule 3(2) of the Code. The policy of the law, however, is not to unduly obstruct the defendant in his defence by imposing too harsh conditions. The basic object of enacting Order 37 in the Code is to see that suits on negotiable instruments instituted within the shorter period of limitation prescribed for the purpose are not unduly delaved by untenable please in defene because of the obvious legal presumption arising from such documents. But at the same time when the defence does raise a triable issue, the trial must not be rendered prejudicial to the defendant by imposing unduly harsh conditions. A triable issue being raised, the Court must lean in favour of a proper trial without placing unreasonable hurdles in the defendant's way, but of course duly .safeguarding the plaintiff's right to succesfully execute the decree he may obtain and reap its fruit without much delay difficulty or observation. Beyond this, it wouH appear to be unfair and unjust to the defendant if more onerous terms are imposed as a condition precedent to his appearance in Court for defending the suit.