A C TRADERS Vs. NAWAL KISHORE

JUDGEMENT

(1.) This is a revision by the defendants against the order of the Additional District Judge, Barmer, dt/- Sept. 27, 1986, whereby in civil suit No. 9 of 1980 filed by the non-petitioner Nawal Kishor in its court for the recovery of an amount of Rs. 83,700/- as principal and 11,700/- as interest, in all Rs. 95,400/- instituted against the petitioners on the basis of an alleged Khata executed by petitioner 2 on behalf of the partnership firm petitioner 1 on April 2, 1985 after going through the accounts of various amounts alleged to have been advanced by plaintiff non-petitioner to the petitioner by various demand drafts dt/- June 18, 1984 and June 28, 1984. This suit was filed under O.XXXVII of Civil P.C. In accordance with sub-rule (1) of R.3 of O.XXXVII, the plaintiff non-petitioner served upon the defendants petitioners a copy of the plaint and annexures thereto together with the summons under R.2 of the said Order. The defendants petitioners entered their appearance before the Additional District Judge, Barmer on May 3, 1986 and filed his address for service of notices on them. The plaintiff's counsel was then directed to serve on the defendants petitioners a summons for judgement in form No. 4A in Appendix B. In pursuance thereof the defendants made an application under O.XXXVII, R.5 of the Civil P.C. for leave to defend the suit instituted by the non-petitioner. In his application for leave to defend, the petitioner 2 had requested that leave may be granted without attaching any condition of giving security. The Additional District Judge, Barmer by his order dated Sept. 27, 1986, decided this application and granted leave to the petitioners to defend the aforesaid suit filed by the non-petitioner. The Additional District Judge, however, imposed a condition that the petitioners shall give security within 10 days to the effect that in case the plaintiff's suit was decreed, the surety would also be liable to pay the decretal amount. It is against this order of imposing the condition of giving security that the defendants have come in revision to this Court.

(2.) I have heard Mr. Suresh Shrimali appearing for petitioners.

(3.) At the outset, I may mention the reasons given by the Additional District Judge, Barmer in his impugned order for imposing the condition of giving security on the petitioners. The defendants while disclosing facts sufficient to entitle them to defend, mentioned in their application under O.XXXVII R.5 of the Code that the Khata dt/- April 2, 1985 on the basis of which the suit had been filed by the non-petitioner was forged one and has been fabricated in collusion and that it does not bear the signatures of Arjundas defendant 2. The Additional District Judge observed that on Sept. 11, 1986 a Police Inspector of Police Station Halol in Gujarat had come to the court in connection with a case lodged with regard to the fabrication of this document and had, with the permission of the court, taken a photo-copy of the document. He then proceeded on to state that although this fact does not affect the merits of the case, but the plea of the petitioners that the document was a result of some conspiracy or was fabricated would be a matter which would be clear only after the evidence is recorded. According to him in case where there is no substantial defence, leave to defend should be granted on giving of security by the defendant. On this basis, the Additional District Judge imposed the condition on the defendants to furnish the security as aforesaid. This matter had come for consideration in the case of Sundaram Chettiar v. Valli Ammal reported in AIR 1935 Mad 43. In that case Valli Ammal respondent had filed a suit on promissory note against Sundaram Chettiar claming Rs. 3150/-, the face value of the promissory note being Rs. 4,000/-. She was unable to produce the promissory note and sued for the lesser amount upon the ground that the defendant had made a part payment of Rs. 1,000/-. As regards inability to produce the promissory note she stated that she had parted with the promissory note because the defendant took it away in order to get the endorsement of the payment of Rs. 1000/- and he refused to return it to her. The defendant put an application for leave to defend supported by an affidavit wherein he raised a plea that he had made a part payment of Rs. 950/- only and not Rs. 1000/- and the same had been accepted by the plaintiff in full satisfaction of the promissory note for the reason that the plaintiff together with a number of other creditors of the defendants had agreed to accept payment of four annas in the rupee which was having by a written composition. The Master was of the opinion that this defence was not bona fide or he had doubts as to the bona fide nature of it and he accordingly gave a conditional leave to defend that condition being that the defendant should within one week of the date of the order pay into court the full amount claimed in the Court. His Lordship Beasley C.J. who delivered the judgement of the Bench referred to two English decisions reported in (1901) 85 LT 262 and (1932) 2 KB 353 and also earlier decision of the Madras High Court in AIR 1924 Mad 612 and observed as under :-