S AMRIK SINGH Vs. S JAGJIT SINGH

JUDGEMENT

(1.) THESE four revision petitions have arisen out of two suits on the basis of negotiable instruments. The four revision petitions constitute a set of cross-revision petitions in the two suits. An application was made by the defendants in the two suits under Order 31, Civil P. C. , praying for permission to defend the suits. Permission was granted on condition that the defendants deposit the amounts claimed or furnish security within a period of one month. The defendants have moved this Court on the revision side, and the prayer in their revision petitions is that the condition imposed by the trial Court should be abrogated. On the other hand the plaintiffs have also filed revision petitions in which the prayer is that the permission to defend the suit should not be granted in the circumstances.

(2.) A preliminary objection was taken to the two revision petitions filed by the defendants on the ground that no revision petition lay to this Court against an order of this type. Reliance was placed on a decision of the Lahore High Court in -- 'lala Manohar Lal v. Nanhe Mal Sanwal das', AIR 1938 Lah 548 (A), in which this point was directly considered by Addison and Abdul rashid JJ. The learned Judges took the view that an order passed by a Court under Order 37, rule 3 giving leave to defend conditionally is an Interlocutory order and does not amount to "a case decided" within the purview of Section 115 so as to be open to revision. The learned Judges, however, went further than holding that this was not "a case decided" and their decision was based on the additional consideration that even if this order were assumed not to be an interlocutory order the appellate court Would not, interfere sitting on the revision side, because the trial Court cannot be said in the circumstances to have acted illegally or with material irregularity in the exercise of its discretion. Upon these two grounds the learned Judges held that no revision petition lay against an order granting leave to defend a suit under Order 37, civil P. C. , upon certain conditions. This is the only ruling which is directly in point, and Mr. Grover, who appealed on behalf of the petitioners, argued that this decision was based on an earlier decision which interpreted the provisions of Section 115, Civil P. C. . and that that ruling had since been dissented from in a subsequent Pull Bench Decision of the Lahore High Court. But the point considered in those two cases was what was "a case decided", and as I have indicated above the 'ratio decidendi' of AIR 1938 Lah 548 (A) was two-fold, namely that the order of the trial Court did not amount "to a case decided" and also that the re visional Court could not interfere because the trial Court had full jurisdiction to exercise its discretion and even the wrong exercise of discretionary power could not be questioned by a revisional Court.

(3.) THERE are two other cases which are in point. The matter came up before the Punjab High court in--'s. S. Bazaz v. Ishar Das Wadhwa', AIR 1950 EP 247 (B), and in this case a Division bench took the view that leave to defend a suit under Order 37. Civil P. C. , must be granted if the defence raises triable issues. in that case the learned Judges took the view that the defence raided did contain triable issues and the learned Judges granted leave to delend but upon conation that the defenuants rurnish security within a period of two months, in another case, which came up before myself and Harnam Singh J. , --'jwala Bank Ltd. v. Habib Ahmed', AIR 1952 Punj 296 (C), I expressed the same view. The following observation appeal's towards the end of this judgment: