KAMLA PRASAD CHOURASIYA Vs. PRAVIN KUMAR JAIN

JUDGEMENT

(1.) INVOKING the extra ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of order dated 31-3-89 contained in Annexure P. 5.

(2.) THE facts as have been unfurled are that the petitioner is a Lime Mine Contractor having lime kiln near Bamhani Banjar Distt. Mandla. The non applicant No. 1 used to purchase lime from the petitioner from the petitioner from time to time on credit and used to make payment thereof after some time. As the petitioner and respondent No. 1 had good relations, the respondent No. 1 for the purpose of supplying of lime to some government departments requested the petitioner to sign some papers with a view to submit the tenders which the petitioner did in good faith. In course of business transaction as the respondent No. 1 did not pay the dues of the petitioner for a considerable length of time the petitioner demanded the same. While this back ground existed the respondent No. 1 instituted a summary suit against the petitioner under Order 37 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for realisation of Rs. 17,200/- alleging that the petitioner had borrowed an amount of Rs. 10,000/- from him which was paid by cheque No. 6027851 in the name of Union Bank of India, Jabalpur Branch and the petitioner executed a receipt thereof in favour of respondent No. 1. The petitioner denied the aforesaid allegations and stated that an amount of Rs. 10,000/- was paid in cash towards the dues on account of the price of lime and after adjusting the aforesaid amount Rs. 5489/- still remained unpaid. It was also stated in the written statement that the suit under Order 37 was not maintainable and that the paper signed by the petitioner for submitting tenders to Government departments had been utilised by respondent No. 1 by preparing a false receipt. The petitioner filed an application under Order 37 Rules 3 (5) for permission to defend the suit. The learned trial Judge by order dated 20th January 1988 granted the permission to defend the suit. Against the said order the respondent No. 1 preferred a civil revision before the Court of Additional District Judge, Balaghat and the revisional Court by order dated 31-3-89 quashed the order granting leave to defend. Being aggrieved by the said order the petitioner has preferred the present writ petition.

(3.) IT is averred in the Writ petition that Order 37 applied to the suits based on Bill of Exchange, Hundis, Promissory Notes, or to recover the debt on written contract or on enactment or on a guarantee as per provision of Sub-rule (2) of Rule 1 of Order 37 but a suit of present nature is not covered under the said order. It is also put forth that while granting leave the Court is to see whether the facts alleged by the defendants are such which entitle him to defend the suit. It is also stated that leave cannot be refused when there has been substantial defence to raise.