FATEH LAL Vs. SUNDER LAL

JUDGEMENT

(1.) This revision petition has been filed by the defendant Fatehlal, against the order dated 11th July, 1979, passed by the District Judge, Udaipur, in Civil Suit No. 129/1978, filed by respondent Sunderlal, against the petitioner for the recovery of Rs. 21,080/- (Rs. 15,500/-by way of principal amount and Rs. 5580/-on account of interest thereon), on the basis of certain cheques and promissory notes executed by the petitioner in favour of the respondent during the period from 7th October 1973, to 26th May, 1975. The said suit was filed on 16th of October 1978 under Order 37, of Civil P.C. In the suit aforesaid, the respondent has stated that after the execution of the aforesaid cheques and promisory note the petitioner had entered into an agreement on 26th October 1975, whereby he acknowledged the debt payable by him and agreed to pay the said amount in instalments. After the receipt of the notice in the said suit, the petitioner moved an application under Order 37 Rule 3 (5) C.P.C., for the grant of leave to defend the suit. The said application was accompanied by the affidavit of the petitioner. In the said application as well as in the affidavit in support thereof, the petitioner has stated that the agreement dated 29th October, 1975, on the basis of which the suit has been filed, is a forged document and that it does not bear his signatures and that on the date of the execution of the said agreement, i.e. 29th October, 1975, the petitioner was not in Udaipur but was at Vishakhapatnam and that if the agreement dated 29th October, 1975, is held to be a forged document, the suit of the plaintiff non-petitioner would be barred by limitation. The said application of the petitioner for grant of leave to defend the suit was disposed of by the District Judge, Udaipur by his order dated 12th July, 1979, whereby he granted leave to the petitioner to defend the suit on condition that the petitioner either deposits in court the amount claimed in the suit along with the written statement or furnishes bank guarantee for the said amount. Being aggrieved by the aforesaid order dated 12th July, 1979, passed by the District Judge, the petitioner has filed this revision petition.

(2.) Shri N.N. Mathur, the learned counsel for the petitioner, has submitted that the District Judge, while granting leave to the petitioner to defend the suit, has erred in imposing the condition requiring the petitioner to deposit in the court the amount claimed in the suit or to furnish the bank guarantee in respect of the same. The submission of the learned counsel for the petitioner is that the petitioner has raised bona fide triable issues and that in view of the principles laid down by the Supreme Court in M/s. Mechalec Engineers and Manufacturers v. M/s. Basic Equipment Corporation, AIR 1977 SC 577, the petitioner was entitled to an unconditional leave to defend the suit. Shri L.R. Bhansali and learned counsel for the respondent, on the other hand, has submitted that the principles laid down by the Supreme Court in M/s. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation were in relation to the provisions of Order 37, Rule 3 C.P.C. as they stood prior to the enactment of the Code of Civil Procedure (Amendment) Act, 1976 hereinafter referred to as the Amendment Act, and that by the Amendment Act, the provisions of Rule 3 of Order 37 have been completely changed and that the principles laid down by the Supreme Court are not applicable to the amended provisions of Order 37, Rule 3 C.P.C. According to Shri Bhansali, the District Judge had rightly imposed the condition with regard to the deposit of the amount claimed in the suit or furnishing the bank guarantee for the said amount while granting leave to the petitioner to defend the suit.

(3.) The rival contentions urged by the counsel for the parties necessitate an examination of the provisions of Rule 3 of Order 37 of the Civil P.C. as it stood prior to the enactment of the Amendment Act, and the effect of the amendments introduced in the said provisions by the Amendment Act.