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Judgment
Umesh Chandra Dhyani, J.—By means of present Civil Revision, the revisionist seeks to set aside the impugned order dated 21.05.2011 passed by learned Civil Judge (Senior Division), Dehradun, in Original Suit No. 574 of 2009, captioned as M/S Morphogenesis Architecture Studio Pvt. Ltd. v. State Industrial Development Corporation of Uttarakhand Ltd. and others whereby the condition was imposed upon the revisionist-defendant for defending the suit under Order 37 Rule 3 of CPC and the revisionist-defendant was directed to file bank guarantee amounting to Rs. 25:00 lacs.
When the civil revision was taken up for admission on 21.07.2011, learned Coordinate Bench of this Court passed the following order:
"Heard Mr. L.P. Naithani, Sr. Advocate assisted by Mr. Vipul Sharma, learned counsel for the revisionist.
This revision is directed against the impugned order dated 21.5.2011 passed by Civil Judge (S.D.), Dehradun, whereby the condition was imposed upon the revisionist defendant for defending the suit under Order 37 Rule 3 of CPC and the revisionist defendant was directed to file bank guarantee amounting to Rs. 25:00 Lacs.
Learned senior counsel has contended that the learned Civil Judge (S.D.) has not assigned any reason to impose the condition. It is further contended that Order 37 Rule 3(5) of CPC itself shows that the defendant may at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just.
Learned senior counsel has placed reliance upon the judgment of Hon''be Apex Court in case of Santosh Kumar Vs. Bhai Mool Singh, AIR 1958 SC 321 : (1958) 1 SCR 1211 and drew attention of this court towards paras -9 and 13 (renumbered), wherein it has been held that when the defence is a good and valid one, conditions cannot be imposed. The power to impose conditions is only there to ensure that there will be a speedy trial. If there is reason to believe that the defendant is trying to prolong the litigation and evade a speedy trial, then conditions can be imposed.
The application has been moved under Order 37 Rule 3(5) of CPC.
From a bare perusal of the order impugned, it reveals that the learned Judge has narrated the facts of the case, but in the last paragraph no reason has been assigned to impose the condition.
In view of the fact that prior to imposing the condition, prima facie, the satisfaction of the Court is necessary to impose the condition, therefore, as an interim measure, it is directed that the operation of the impugned order shall remain stayed till the next date of listing. (Stay application stands disposed of).
Issue notice to the respondents, who will file their counter affidavit within a period of four weeks. Within two weeks thereafter, rejoinder affidavit, if any, may be filed by the revisionist.
List immediately after expiry of aforesaid period, for admission/orders."
[Emphasis supplied]
None is present for the respondent despite service of notice and hence, the civil revision is being heard and decided in his absence.
Taking a clue from the order of learned Coordinate Bench, this Court is of the view that the order impugned is a bald order sans any reason. The facts and law governing the field have also been reproduced hereinabove, hence this Court need not reproduce them once again for the sake of brevity. The order impugned, therefore, cannot sustain, in as much as, no reason has been assigned in the same as to why defendant (revisionist herein), was asked to furnish a Bank guarantee of Rs. 25 lacs.
It will be worthwhile to reproduce herein paras 9 and 13 of the judgment of Hon''ble Apex Court in Santosh Kumar v. Bhai Mool Singh (supra):
"9. The learned counsel for the plaintiff-respondent relied on Chittukuri Gopala Rao Vs. Parachuri Subba Rao, AIR 1936 Mad 246 : (1936) 43 LW 298 : (1936) 70 MLJ 241 ; Manohar Lal v. Nanhe Mal, AIR 1938 Lah 548 (1) and Shib Karan Das v. Mohammed Sadiq, AIR 1936 Lah 584 (J) . All that we need say about them is that if the Court is of opinion that the defence is not bona fide, then it can impose conditions and is not tied down to refusing leave to defend. We agree with Vadadachariar, J., in the Madras case that the Court has this third course open to it in a suitable case. But it cannot reach the conclusion that the defence is not bona fide arbitrarily. It is as much bound by judicial rules and judicial procedure In reaching a conclusion of this kind as in any other matter. It is unnecessary to examine the facts of those cases because they are not in appeal before us. We are only concerned with the principle.
The learned High Court is also in error in thinking that even when the defence is a good and valid one, conditions can be imposed. As we have explained, the power to impose conditions is only there to ensure that there will be a speedy trial. If there is reason to believe that the defendant is trying to prolong the litigation and evade a speedy trial, then conditions can be imposed. But that conclusion cannot be reached simply because the defendant does not adduce his evidence even before he is told that he may defend the action."
Civil Revision is, therefore, allowed. Interim order dated 21.07.2011 is made absolute. The impugned order is set aside. The matter is remitted back to the Civil Judge, Senior Division, Dehradun to pass a fresh order, giving reasons, after affording opportunity of hearing to both the parties, according to law.
Revisionist is directed to appear before the learned Civil Judge, Senior Division, Dehradun, on 29.05.2015.