K APPA RAO Vs. J SURYANARAYANA MURTHY

JUDGEMENT

(1.) This revision petition is directed against an order dated 14th August, 1961 passed by the District Munsif, Bhimavaram. The essential facts are that the respondent-plaintiff instituted O.S. No. 137 of 1961 in the Court of the District Munsif, Bhimavaram under Order 37, Civil Procedure Code. A summons under that order was issued and was served on the defendant on 8th May, 1961. He filed an application.supported by an a affidavit on. 27th Ma.y, 1961 in I.A No 510 cf 96: under Order '37, rule, 3, Civil Procedure Code seeking permission of the Court to defend the suit. The learned District. Munsif by has order dated 14th August, 1961 granted permission to the decleration to raise the deler.or condit on that he deposited Rs. 250 towards costs. The. deferdent was not satisfide with that conditional order and consequently asked for revew his application dated 23rd August, 1961. Since the defendant had not complied with the condition, the originl suit came up for hearing on 7th September, 1961. On that date, the review application was dismissed as the District Munsif did not find any valid reason to reconsider his previous order. The suit also was decreed. The defendant did not prefer any appeal against the decree. He however has filed the present Civil Revision Petition against the order granting him permission to defend on the above, said condition.

(2.) It was contended by Mr. Adavi Rama Rao, the learned Counsel for the petitioner, that there was a triable issue and the Court ought not to have granted the leave on condition but must have granted the leave, unconditionally. In support of his contention, he relied upon the following two decisions: Sundaram Chettiar v. Valli Ammal, (1935) 68 M.L.J. 16 : I.L.R. (1935) 58 Mad. 116 : A.I.R. 1935 Mad. 43. and Santosh Kumar v. Mool Singh, (1958) S.C.J. 434: (1958) 1 An.W.R. (S.C.) 159 : (1958) i M.L.J. (S.C.) 159 : (1958) S.C.R. 1211 : A.I.R. 1958 S.C. 321. In order to appreciate the implications of this contention it is necessary to read Order 37, rule 3, Civil Procedure Code. It is in the following terms: " (1) The Court shall, upon application by the defendant give leave to appear and to defend the suit, upon affidavit which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application. (3) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit. "

(3.) A careful reading and a close analysis of rule 3 would disclose that in order to successfully get the leave from the Court, the defendant has to make out in his affidavit facts which make it imperative on the holder of the negotiable document to prove consideration or such other facts as the Court may deem sufficient to support the application. In this case, no facts are pleaded wh'ch make it incumbent upon the holder of the promissory note, that is co say, the plaintiff, to prove cons deration. What was pleaded in the affidavit was that the defendant has paid Rs. 200 to the plaintiff through his clerk on or about 15th April, 1961 as part payment. The payment was not admittedly endorsed on the promissory note non the defendant holds any receipt evidencing any such payment. The defendant did not give, any notice to the plaintiff prior to the institut on of the suite demanding the receipt or an endorsement upon the promissory note evidencing the p'ayment. In these cercumstances the lower Court thought that the facts mention? d do not support the appication and yet granted leave on condition that the defendant deposited Rs. 250 towards costs. According to sub-rule (2) of Rule 3, leave to defend can be given unconditionally or subject to such terms as to payment into Court, giving stcurity, framing and recording issues or otherwise as the Court thinks fit. It confers a wide discretion on the Court. The Court exercising the discretion, however, is bound to exercise it in accordance with the principles now fairly la d down for the exercise of such discretion. It has to be judicially exercised.