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Judgment
In this petition, the petitioner canvasses the correctness of the of the lower court directing him to deposit a sum of Rs. 2,000/- as a condition
precedent for the grant of leave to defend the suit O. S. No. 584 of 1966. It is contended by the petitioner that the lower court has found that
there is a triable issue in the face of the contentions raised by the petitioner its direction to deposit the sum of Rs. 2,000/- is erroneous in law. A
perusal of the order of the lower court shows that it specifically finds that having regard to the contentions raised by the petitioner in his affidavit, a
triable issue certainly arises in this case, and that it was just and necessary to grant leave to the petitioner to defend the suit. The trial court also says
that the plea raised by the defendant is not a mere ruse to protract the proceedings. After finding that there arises a triable issue and that the plea
raised by the petitioner is not a mere ruse but a bona fide one the trial court has chosen to give a direction to deposit a sum of Rs. 2,000/- on or
before 29-4-1970 as a condition precedent for the grant of leave.
The learned counsel for the respondent however contends that the finding of the trial court that there arises a triable issue on the plea raised by
the petitioner is not borne by the records, and reliance is placed on some letters said to have been written by the petitioner wherein he has
undertaken to settle the claim of the petitioner. I am not in a position to straightway act upon the letters pointed out by the respondent at the stage
of revision and therefore I am not going behind the finding given by the lower court that a triable issues arises on the pleadings raised by the
petitioner. The question is, whether after giving such a finding, the lower court is justified in imposing a condition for the payment of Rs. 2,000/- for
the grant of leave to defend.
It is well established that in matters of this kind the discretion to grant leave to defend has to be exercised by the trial court in a judicial manner.
In this case, the court below has found that a triable issue in fact arises on the plea raised by the petitioner. As pointed out by the Supreme Court in
Milkhiram (India) Private Ltd. and Others Vs. Chamanlal Bros., , if the Judge is of the opinion that the case raises a triable issue then leave should
ordinarily be granted unconditionally. On the other hand, if he is of opinion that the defence raised is frivolous, or false, or sham, he should refuse
leave to defend altogether. But, where it is not possible to say whether the defence is a genuine one or not, then the discretion is left to the trial
Judge to grant leave to defend on certain conditions. In this case, having regard to the fact that the trial court has held that there arises a triable
issue on the plea raised by the petitioner, leave should have been granted automatically without imposing any condition. The trial court itself says
that the defence raised is not a ruse to prolong the defence and that it is bona fide one. In the face of that finding, it is not possible to uphold the
condition imposed by the lower court for payment of a sum of Rs. 2,000/- as a condition precedent for the grant of leave. The result is that part of
the order of the lower court directing the petitioner to deposit a sum of Rs. 2,000/- will stand deleted. The civil revision petition is allowed, and in
the circumstances, there will be no order as to costs.
Having regard to the fact that the suit is of the year 1966 I direct the lower court to dispose of the suit as expeditiously as possible preferably
within six weeks from this date.
Revision allowed.