Alla Venkata Kistnayya vs Alapati Ramaswami on 7 December, 1934

Madras High Court
Alla Venkata Kistnayya vs Alapati Ramaswami on 7 December, 1934
Equivalent citations: 157 Ind Cas 591, (1935) 68 MLJ 407
Author: Ramesam


Ramesam, J.

1. This revision petition arises out of a suit filed by the Respondent on a promissory note, the petitioner before me being the defendant.

2. The plaintiff filed the suit under Order 37, Civil Procedure Code. The defendant applied for leave to defend and notice was ordered to the plaintiff. Afterwards the Court passed the following order “The petitioner will deposit the amount admittedly due on the suit pro-note and give security of unencumbered immoveable property for the balance claimed in the suit as a condition precedent to his being permitted to defend the suit”. The present Revision Petition is against this order.

3. The Subordinate Judge has not addressed himself to the question whether the defendant’s affidavit discloses a bona fide defence. In Periya Miyana Marakayar v. Subramania Aiyar (1923) 46 M.L.J. 255 it was held by Schwabe, C.J., and myself that if there is a triable issue in the case the Court ought to grant leave to defend without requiring the defendant either to pay the amount claimed or to furnish security therefor. The same rule has been laid down in Olayatt Kunhu v. Ussan Kasim Sait A.I.R. 1929 Mad. 841 (1). The Subordinate Judge seems to assume that in every case he ought to demand security. Anyhow his order does not show that he applied his mind to the matter and considered the question whether in the particular case there is a triable-issue. In these circumstances as the amount involved in the suit is a very heavy amount and as the result of the lower Court’s order may be substantial injustice, I am of opinion that a material irregularity has been committed by the Trial Court. On looking at the defence I find that it raises a triable issue and apparently a good defence if made out. The defendant relies on documents for his case. I think that he ought to be given an opportunity to have his case tried but at the same time, I do not desire that the plaintiff should suffer by any concession shown to the defendant.

4. I would modify the order of the Court below as follows: – The defendant should deposit into Court the amount admitted in his written statement and also Rs. 60 towards the possible costs of the plaintiff within six weeks from the receipt of this order by the Court below. The costs of this Revision Petition will abide the result.

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