VIJAYKUMAR K SHAH Vs. FIRM OF PARI NARESHCHANDRA

JUDGEMENT

(1.) This Revision Application is directed against an order passed by the City Civil Court Ahmedabad granting leave to the first defendant to defend the suit on condition of depositing a sum of Rs. 1 0 within two weeks from the date of the order. The suit was filed by the plaintiff against defendants Nos. 1 and 2 to recover a sum of Rs. 2 0 being the amount due under a cheque dated 22nd September 1963 drawn by the second defendant in favour of the first defendant and endorsed by the first defendant in favour of the plaintiff. The cheque was delivered by the first defendant to the plaintiff on 11th September 1963 and against the cheque the plaintiffs paid a sum of Rs. 2 0 to the first defendant. The cheque was thereafter presented by the plaintiff for payment on 22nd September 1963 but the cheque was dishonoured by the Bank by nonpayment. The plaintiff therefore filed the present suit to recover the amount due under the dishonoured cheque together with interest and costs The suit was filed as a summary suit since it was based on a negotiable instrument and after the defendant filed his appearance the plaintiff took out a summons for judgment for a decree for the amount claimed in the suit. The defendant resisted the summons for judgment by filing an affidavit-in-reply but the learned Judge hearing the summons for judgment after taking into account the plaint and the affidavits made an order granting conditional leave to the first defendant to defend the suit on his depositing a sum of Rs. 1 0 within two weeks from the date of the order. The first defendant thereupon preferred the present Revision Application in this Court challenging the validity of this order.

(2.) The first contention advanced by the learned advocate appearing on behalf of the first defendant was that Rules 142 to 148A of the Ahmedabad City Civil Court Rules 1961 were ultra vires the rule-making power of the High Court and the learned Judge had therefore no power to impose any condition on the right of the first defendant to defend the suit. This contention is however unsustainable in view of the judgment given by us on 2nd February 1967 in Civil Revision Application No. 1089 of 1966 where we have taken the view after an elaborate discussion of the various arguments bearing upon the question that Rules 142 to 148A are not ultra vires the rule-making power of the High Court (M/s. Keshavlal v. Manubhai IX G.L.R. 177). Having regard to that judgment we must reject the present contention urged on behalf of the first defendant.

(3.) It was then contended on behalf of the first defendant that the order granting conditional leave to defend the suit was bad inasmuch as it did not disclose the reasons on which it was based. The argument was that since the order was a judicial order made by the learned Judge in the exercise of his judicial discretion it was necessary that it should set out the reasons so that the revisional Court could examine the validity of the reasons which prevailed with the learned Judge in exercising his discretion in the manner he did. This argument was sought to be supported by reference to the decision of Mudholkar J. sitting as a single Judge of the Bombay High Court in Waman v. Firm Pratapmal D. & Co. A.I.R. 1960 Bombay 520. Now it is no doubt true that this decision of the Bombay High Court does say that an order granting or refusing leave to defend made by a Judge under the summary procedure must set out the reasons on which the order is based but with the greatest respect to the learned Judge we find ourselves unable to agree with the view taken by him. So far as the Code of Civil Procedure is concerned the summary procedure is prescribed in Order 37 of the Code and when we turn to the rules enacted in Order 37 of the Code we do not find any provision in those rules which lays down that an order granting or refusing leave to defend made by a Judge in a summary suit must contain the reasons for the making of the order. The order to be made by the Judge is not required to be supported by a judgment Setting out the reasons which weighed with the Judge in making the order. So also we do not find anything in Rules 142 to 148A which requires that the order must disclose the reasons in support of it or that it must be accompanied by a judgment giving the grounds in support of the order. There is also no provision in the body of the Code or in the rules in the First Schedule either as originally enacted or as amended by the High Court from time to time which requires that an order granting or refusing leave to defend a suit filed under the summary procedure must set out the reasons for the making of the order. The only question which then remains for consideration is whether there is any general principle of law which requires giving of reasons. Now it is a well-settled principle of jurisprudence which has also been extended to the field of administrative law that where a Court or Tribunal makes an order which is appealable the order must contain the reasons for unless the reasons are given it would not be possible for the appellate Court or Tribunal to examine the correctness of the order appealed. If therefore the order granting or refusing leave to defend were appealable it might have been possible to say that the provision of an appeal imported by necessary implication the requirement that the order must set out the reasons. But the order is not appealable under the Code or under any other provision of law. The only remedy against the order is a revision application to the High Court under sec. 115 of the Code. This principle which requires that an order which is appealable must state the reasons for its making is however not applicable where the order is not appealable but is merely subject to the revisional jurisdiction of the High Court. We asked the learned advocate on behalf of the first defendant whether he was in a position to show any authority which has taken the view that merely because a revision application is provided against an order it must set out the reasons which induced the Court or the Tribunal to make it. The only authority which the learned advocate was able to cite before us was the decision of the Supreme Court in Milkhiram (India) P. Ltd. v. Chamanlal Bros. A.I.R. 1965 S.C. 1698. The question which arose in that case was whether an order made by a single Judge of the Bombay High Court on the Original Side granting conditional leave to the defendant to defend a summary suit was bad on the ground that no reasons were given for making it. The Supreme Court held that it was not necessary that the order should contain any reasons in support of it and while dealing with this question Mudholkar J. speaking on behalf of the Supreme Court made the following observations which were strongly relied on by the learned advocate of the first defendant:-