PARVINDER KAUR Vs. RAM LAL

JUDGEMENT

(1.) Aggrieved by the order of refusal to grant permission to appear and defend in a suit filed under Section 37 of the C.P.C. passed by the Court of Sub-Judge, Jammu, this revision petition has been filed with a prayer to set aside the order impugned and grant permission to the petitioner herein to appear and defend the suit filed against her. From the facts of the case, it appears the suit based upon the promissory note For the recovery of Rs. 5,37 5.00 was filed against the petitioner-defendant who sought the permission of the trial Court to defend the suit in terms of Ruts 3 of Order 37 of CPC. As the petition filed by the defendant was not accompanied by an affidavit, the same was dismissed by the trial Court vide the judgment impugned in this petition.

(2.) I have heard the learned counsel the parties and have perused the record.

(3.) Suits based upon the bills of exchange, hundies and promissory notes or the suit in which the petitioner-plaintiff seeks apply to recover a debt or liquidated demand in money payable by the defendant with or without interest arisen by a written contract or by an enactment, where the sum sought to, Inc recovered is a fixed Burn of money o, in the nature of debt other than a penalty or rats of a guarantee where the claim against the principal is in support of a debt or on the liquidated demand only, are the suits covered by Order 37 of the CPC which have to be tried summarily. The defendant is not entitled to defend such suits unless he enters in appearance and granted permission to defend the suit in accordance with the procedure prescribed under Rule 3 of Order 37 of the CPC. Order 37 of CPC deals with summary procedure for suits covered by it with the object to abridge the proceedings providing rapidity of disposal. The provisions of the Order are merely procedural and cannot be construed as negativating or superseding the substantive rights of the debtor available to them under the ordinary law. When the defendant enters an appearance and is served a summons for judgment in the form prescribed, h, has a right to pray by affidavit or otherwise permission to defend the suit after disclosing such facts as are deemed sufficient it) entitle him. Such a prayer when made has to be disposed of by the Court in accordance with the provisions of law. The leave petition cannot be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he had substantial defence to raise or that the defence intended to be put up by the defendant was frivolous or vexatious. In other words, the general rule is to grant leave if substantial defence is disclosed and exception is to refuse the leave only after holding that the defence raised was either frivolous or vexatious. If the defence disclosed is bona fide, the leave should be granted unconditionally.