RAWALPINDI THEATRES PRIVATE LTD Vs. FILM GROUP

JUDGEMENT

(1.) THIS is an application in revision against an order of the learned Judge of the City Civil Court granting conditional leave to the defendants in a summary suit. The order directed that the petitioners should deposit a sum of Rs. 5,000 within a specified time as a condition to the right of the defendants to appear in and defend the suit.

(2.) THE facts are that the plaintiffs are producers of a film and they produced a film by the name of 'Musafir'. Defendants No. 1 are distributors and they entered into an agreement with the plaintiffs to take up the distribution of this film for Delhi and U.P., and under this agreement the defendants were to pay Rs. 1,35,000 to the plaintiffs. Rs. 65,000 were to be paid during production and Rs. 70,000 against the delivery of prints. It is common ground that Rs. 48,000 were paid by the defendants as against the sum of Rs. 65,000 which was to be paid. It is the case of the defendants that on May 3, 1957, they entered into various agreements with exhibitors in U. P. and Delhi and one of these agreements was with Nishat Talkies of Kanpur by which Nishat Talkies agreed to pay the petitioners Rs. 25,000 as minimum guarantee on condition that they gave the Talkies two prints simultaneously with the release of the film at Delhi, and according to the defendants the Nishat Talkies paid on May 17, Rs. 11,000 as against this minimum guarantee of Rs. 25,000. This film was released in Bombay on May 17, and it is again common ground that notwithstanding the brilliant caste the film was a flop, In view of this, and the parties having realised that not much profit was to be made out of this after the exploitation of this film, the original agreement entered into between the plaintiffs and the defendants was modified on July 3, 1957, and the main modification with which we are concerned is that the mode of payment of Rs. 1,35,000 was altered and the mode of payment settled by this agreement was that the defendants were to pay Rs. 52,000 against delivery of 11 prints, three of which were to be looked upon as a loan which were to be returned within two or three weeks, Rs. 15,000 were to be paid by hundis drawn by the defendants in favour of the plaintiffs payable on August 31, 1957, and the balance of Rs. 20,000 were payable out of the realisations made by the defendants. It is the case of the defendants that only five out of the 11 promised prints reached Delhi on July 16, and on intimation being given by the bank the defendants took delivery of these five prints against payment of Rs. 52,000, and it is the case of the defendants that they paid Rs. 52,000 and took delivery of these prints in the supposition that they were 11 prints as agreed to under the contract. Having paid Rs. 52,000 and having found that only five prints instead of 11 prints had been delivered to them, they sent a telegram to the plaintiffs protesting against having been made to pay Rs. 52,000 only against delivery of five prints. The three other prints were taken delivery of by the defendants at a later date and there is some dispute with regard to the three loan prints into which we need not enter at this stage. On November 4, 1957, the defendants filed a suit in the Delhi Court contending that they had suffered damage to the extent of Rs. 30,000 by reason of the failure on the part of the plaintiffs to deliver 11 prints on July 17, 1957, and the summary suit out of which this revision application arises was filed a few days later.

(3.) MY attention was drawn by Mr. Malhotra, and drawn very pointedly and very emphatically, to the recent decision of the Supreme Court in Santosh Kumar v. Mool Singh : [1958]1SCR1211 . It is said that the Supreme Court has now laid down a new principle of law with regard to the granting of leave in summary suits, and according to Mr. Malhotra the learned City Civil Court Judge has contravened that principle of law, and if I am satisfied that that principle of law is contravened it is my duty to interfere in revision. First let us turn to the Supreme Court decision and see what it has done. It is said that the Supreme Court has now laid down that if the affidavits filed by the defendant disclose a triable issue, then leave must be given unconditionally, otherwise the leave may be illusory, and this is based on the principle of natural justice that a defendant should be heard in his defence if he has a defence to put forward and his mouth must not be compulsorily shut if he is not in a position to comply with the condition imposed by the Court. Now, it is my experience both at the Bar and on the Bench that Judges on the Original Side and of the City Civil Court have been dealing with hundreds of summary suits and observing the identical principle which according to Mr. Malhotra the Supreme Court has enunciated for the first time. The practice in summary suits is well settled in the High Court for the last, I believe, 75 years and in the City Civil Court since the City Civil Court was established. The difficulty arises not in failing to realise that leave must be granted when there is a triable issue but in understanding and appreciating what a triable issue is. With respect, the Supreme Court has not defined a triable issue. A triable issue cannot possibly be any issue which may be raised at a trial on the pleadings. If that were so, however frivolous, however untenable, however dishonest the defence may be, it would give rise to an issue. A triable issue does not and cannot mean a raisable issue, an issue which can be raised on the affidavits or on the pleadings. In relation to a summary suit where matters are decided on affidavits, a triable issue can only mean that a defence is revealed or disclosed in the affidavit of the defendant which cannot be summarily disposed of on the affidavits and which requires a trial and a further investigation. It also means that if the trial and further investigation resulted in the defendant's contention being found to be correct, the defendant would be entitled to succeed. This is clear also from the judgment of the Supreme Court itself because at p. 324 the Supreme Court points out: In general, therefore, the test is to see whether the defence raises a real issue and not a sham one, in the sense that, if the facts alleged by the defendant are established, there would be a good, or even a plausible, defence on those facts. Further, the Supreme Court also says that if the Court is of opinion that the defence is not bona fide, then it can impose conditions and it is not tied down to refusing leave to defend. Therefore, it is open to a learned Judge dealing with a summary suit to peruse the affidavits, to consider the defence and to decide whether the issue which the defendant seeks to raise is a real or a sham issue and also whether the defence is put forward bona fide or mala fide. It is, therefore, only a defence which is a real defence, real both in law and in fact, and a defence which is not put forward mala fide, that results in a triable issue as understood by the House of Lords and which the Supreme Court has accepted as the true test. Therefore, it is entirely erroneous to suppose that, with very great respect, the Supreme Court has laid down any new principle of law or has laid down any new test or that the Supreme Court has suggested that the hands of the Judges dealing with summary suits are completely tied down and as soon as they find a paragraph in the affidavit putting forward a defence they must immediately stop any further discussion and give unconditional leave to the defendant. That is not, and with respect cannot be, the effect of the decision of the Supreme Court.