LALA RAM Vs. BASTI MAL

JUDGEMENT

(1.) This is a revision against the order of learned Civil Judge (SD), Bhinmal dated 28.11.1994 by which he dismissed the applications of the defendants to grant them leave to defend the suit.

(2.) Briefly stated, plaintiffs filed a suit under Order 37, CPC for recovery of Rs. 18,900/- against the defendants on the basis of a pronote alleging that the defendant No. 1 is the karta of Joint Hindu Family while defendant No. 2 is minor and that defendant No. 1 took loan of Rs. 15,000/- for the legal necessity of Joint Hindu Family at Bagauda and executed a pronote. Learned District Judge, before whom the suit was originally filed, issued notices to the defendants in Form No. IV and the defendants put their appearance on 7.9.1992 i.e. within ten days of service of summons as the summons were served on them on 31.8.1992. Later on the suit was transferred to the learned Civil Judge because of change of jurisdiction. Notices were then sent to the defendants. Defendants No. 1 and 2 filed applications for leave to defend stating that they were living separately and that the defendants No. 2 and 3 were minors and that defendant No.1 was carrying on his business at Mysore and that they were not members of Joint Hindu Family and that the sum, as alleged, was never borrowed nor pronote was executed and that the alleged thumb impression on the pronote was forged, that the plaintiffs were carrying on money lending business but they have not produced licence for money lending under the Rajasthan Money Lender's Act. Affidavits were submitted to the effect that the applications for leave to defend could not submitted within ten days for reasons that the defendants were illiterate and that Bhoma Ram and Bandha Ram are the real sons of Lala Ram out of whom Bhoma Ram does not live in the village while Bandha Ram was living separately and that the pronote was forged one. An application alongwith affidavit on behalf of Lala Ram was filed on 22.1.1994 while a similar application on behalf of Bhoma Ram alongwith affidavit was filed on 8.4.1994 in which it was specifically mentioned that his notice was served on Lala Ram and that he was a major and was residing separately from his father and was carrying on his business at Mysore and that as soon as he knew about the suit he put his appearance in the Court and that the delay be condoned and he may be allowed to defend the suit. His affidavit in support of application was filed. These applications were contested by the plaintiff. The learned Civil Judge dismissed the applications of the defendants and did not grant leave to defend. Hence this revision.

(3.) I have heard the learned counsel for the both the parties. Learned counsel for the petitioners submitted that the learned Civil Judge has committed material irregularity and illegality by not allowing the applications to leave to defend. The defendants had put apperance initially on 7.9.1992 through their advocate Ishwar Das and thereafter the suit was transferred to the Civil Judge. There are affidavits to the effect that the defendants were living separately and one of them had gone to Mysore in connection with his business.These affidavits have not been controverted by the plaintiffs.