M V PRASAD Vs. DURGA ENGINEERS REP

JUDGEMENT

(1.) This revision petition is filed against the order dated 20-10-2001 in I.A.No. 915 of 2001 in O.S.No. 837 of 2001 on the file of V Senior Civil Judge, City Civil Court, Hyderabad.

(2.) Necessary facts for the disposal of this revision petition are as follows: The respondent-plaintiff filed a summary suit under Order XXXVII C.P.C., against the revision petitioner for recovery of Rs. 5,40,000-00. According to the plaintiff on 15-12-2000 the defendant borrowed Rs. 5,00,000-00 as a hand loan from the plaintiff. The revision petitioner filed a petition under Order XXXVII Rule 3(5) C.P.C, in I.A.No. 915 of 2001 seeking the leave of the Court to defend the suit. He denied having borrowed Rs. 5,00,000-00 or any other sum as a hand loan from the plaintiff. The petition was resisted by the plaintiff. The trial Court passed the impugned order on 20-10-2001 dismissing the petition filed by the revision petitioner. Aggrieved by that order, this revision petition is filed.

(3.) The Supreme Court of India in Mechalec Engineers and Manufacturers v, Basic Equipment Corporation, approved the principles applicable to the cases covered by Order XXXVII C.P.C., in the form of following propositions stated by the Calcutta High Court in Smt. Kiranmoyee Dassi v. Dr. }. Chatterjee (1945) 49 CaL WN. 246). "(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits, the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence, the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine, then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence."