JAGDISH PERSHAD Vs. DES RAJ

JUDGEMENT

(1.) This revision is directed against the order dated 29-7-1968 of a learned Subordinate Judge 1st Class. Delhi, granting leave to the defendant-petitioner in this Court to defend the suit instituted on the basis of a promissory note dated 27-6-1967 under Order 37 of the Code of Civil Procedure on the condition that he furnishes suitable security in the sum of Rs. 6,200.00

(2.) It appears that there were three defendants against whom the suit was instituted, but one of the defendants remained absent and the proceedings against him were ex- parte. The other defendant denied his signatures on the promissory note and on. account of this denial, he was granted leave to defend the suit without any conditions. The petitioner in this Court admitted his signatures on the promissory note but pleaded that the promissory note in question was for consideration only to the extent of Rs. 2,700.00, although the amount mentioned therein was Rs. 5,000.00. The Court below has observed that the plea regarding insufficiency of consideration is not a good ground on the basis whereof leave to defend can be granted. The furher plea that the plaintiff was a money-lender was also considered not to be a plea justifying permission to defend the suit. After so observing, the Court below expressed its opinion categorically that there was no ground for granting leave to defend to defendant No. 1 who is the petitioner in this Court, but as leave to defend had been granted to another defendant, the Court thought that leave should also be granted to the present petitioner because the transaction to be adjudicated upon was the same for both of them. While granting leave on this premise, the condition mentioned above was imposed.

(3.) The learned counsel for the petitioner in this Court has very strongly contended that this approach is erroneous and is not justified either on the statutory language or on the reccgnised principles which govern the discretion for the purpose of granting or refusing leave to defend Order 37 of the Code. He has. placed reliance on a Supreme Court decision in Santosh Kumar v. Bhai Mool Singh, and on a decision of this Court in Naresh Chandra Mital v. Bishamber Nath Chopra in which a later decision of the Supreme Court reported as Milkhiram (India) Private Ltd. v. Chamanlal Bros. , was also noticed. It may be pointed out that in the later Supreme Court decision, the amendment made by the Bombay High Court in Order 37, Rule 2, fell for consideration. It is this decision on which reliance has been placed in this Court on behalf of the respondent who has laid great stress on the contention that once a defendant admits his signatures on a promissory mote, then it would be erroneous exercise of discretion on the part of the Court to grant leave to defend the suit unconditionally.