ORDER
A.K. Gohil, Adv.
1. Petitioners, who are defendants in Original Civil Suit No. 11-B/2002, have filed this petition under Article 227 of the Constitution of India challenging the order dated 24-12-2002, by which the Trial Court while granting application of the petitioners for leave to defend in a summary suit filed under Order 37, CPC, has imposed the condition of furnishing security and personal bond.
2. Admittedly, the respondent/plaintiff has filed a suit for recovery of Rs. 5,20,000/- against the petitioner and the suit is based on a cheque for the aforesaid sum issued by the petitioners which was subsequently dishonoured. Therefore, admittedly the suit is based on dishonoured cheque. It is also not in dispute before me that in the defence the petitioners have not disputed their signatures on the cheque but in the defence their submission is that they have issued a blank cheque in favour of the respondent/plaintiff long back in the year 1998 and thereafter they have closed their business in 1998 and the last transaction between them took place on 24-6-98 and in 1999 they have also closed their bank account. Therefore, in this case, there is a serious dispute between the parties about the transaction and the circumstance in which the same was issued. It is also not in dispute that on the aforesaid ground the Trial Court has granted conditional permission to leave to defend and has directed that security for a sum of Rs. 5 lakhs be furnished with a personal bond.
3. The learned Counsel for the petitioner submitted that the Trial Court ought to have granted unconditional permission to leave to defend in the suit as the Trial Court has already come to a conclusion that there is a serious dispute exits between the parties and the permission with conditions can not be granted. He further submitted that the order passed by the Trial Court is without jurisdiction on the ground of imposing condition. Shri Jain cited various decisions before me. He placed reliance on a decision in the case of Sunil Enterprises and Anr. v. SBI Commercial and International Bank Ltd., reported in (1998) 5 SCC 354, in which appellant had sought leave to defend on the ground that the bills of exchange were executed without consideration as neither the goods were sold nor supplied in the transaction in question and that there was fraud, collusion and connivance between officers of the Bank and the drawees of the bills and in that context Their Lordships of the Supreme Court has held that unconditional leave must be granted to the appellant/ defendant to defend the suit. In that case Their Lordships of the Supreme Court has considered the position in law which was explained by the Supreme Court itself in earlier cases such as in the cases of Santosh Kumar v. Bhai Mool Singh, AIR 1958 SC 32l; Milkhiram (India) (P)Ltd. v. Chamanlal Bros., AIR 1965 SC 1698 and Mechelec Engineers and Manufacturers v. Basic Equipment Corporation, (1976) 4 SCC 687: AIR 1977 SC 577, and Their Lordships have summed up and laid down the various propositions of law in the aforesaid decisions. Therefore, the following propositions of law laid down by the Supreme Court are required to be followed while considering the question of granting leave to defend.
(a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend.
(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff’s claim, the Court may impose conditions at the time of granting leave to defend the conditions being as to time of trial or mode of trial but not as to payment into Court or furnishing security.
(d) If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave to defend.
(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, the Court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured.
4. On the basis of the aforesaid propositions, the submission of Shri Jain, learned Counsel for the petitioners in nutshell is that in this case because the petitioners/defendants had raised a triable issue and their defence may be possibly a good defence, therefore, the petitioner is entitled to an unconditional leave to defend.
5. In reply, the learned Counsel for the respondent Shri Bhagwat raised a preliminary objection about the maintainability of petition under Article 227 of the Constitution on the ground that unless the order is patently illegal and without jurisdiction, writ petition under Article 227 is not maintainable and that does not provide any ground to the Court to interfere in the order passed by the Trial Court. Learned Counsel for the respondent further submitted that in this case if the Trial Court has exercised its discretion reasonably even in that case this Court should not interfere in the impugned order passed by the Trial Court.
6. Learned Counsel for the petitioner replied on this question and made his submissions and placed reliance on the decision of the Supreme Court in the case of Mohd. Yunus v. Mohd. Mustaqim (AIR 1984 SC 38), in which Their Lordships have held as under :–
“A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority” and not to correct an error apparent on the face of the record, much less an error of law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision.
Held on facts that an appeal lay from an order under Order 21 Rule 92 and further questions raised fell within Section 47, CPC and were appealable. At least a revision lay to High Court against the order and hence High Court had no jurisdiction to interfere with the order of subordinate Judge under Article 227 of the Constitution.”
7. In the case of Achutananda Baidya v. Prafullya Kumar Gayen and Ors., reported in AIR 1997 SC 2077, it has been held as under:–
“If the evidence on record in respect of a question of fact is not at all taken into consideration and without reference to such evidence, the finding of fact is arrived at by inferior Court or Tribunal, such finding must be held to be perverse and lacking in factual basis. In such circumstances, in exercise of the jurisdiction under Article 227, the High Court will be competent to quash such perverse finding of fact.”
8. I have heard the learned Counsel for the parties and perused the record. As has been held in the case of Sunil Enterprises (supra), the propositions laid down by Their Lordships of the Supreme Court which have been summed up in the earlier part, it is clear that if the defendant raises a triable issue indicating that he has clear and bona fide reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend. If the defendant discloses such facts, as may be deemed sufficient to entitle him to defend, that is, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff’s case, the Court may impose conditions at the time of granting leave to defend about the time of trial or mode of trial but not as to payment into Court or furnishing security. Therefore, from the aforesaid propositions of law, it is clear that normally unconditional leave should be granted and conditions should only be imposed when the case falls within the four corners of the aforesaid propositions of law laid down by the Supreme Court. In this case, from the perusal it is clear that the Trial Court has not followed the law laid down by the Supreme Court in the case of Sunil Enterprises (supra). The Trial Court also did not assign reasons before passing the order imposing conditions as has been again held by the Supreme Court in the case of Ashok Umraomal Sancheti v. Rispalchand, (2000 AIR SCW 1853) that when unconditional leave to defend is granted, reasons should be assigned. The same principle may be applicable whenever conditions are imposed. Admittedly, in this case the Trial Court has not assigned any reasons for imposing conditions. Therefore, on both the grounds this case may fall within the category where the Trial Court has neither followed the law laid down by the Supreme Court nor assigned reasons and this may be a case where it can be said that the Trial Court has not exercised its jurisdiction properly and legally and on this ground the High Court may examine the matter under Article 227 of the Constitution of India.
9. Thus, in view of the aforesaid law reiterated by the Supreme Court in the case of Sunil Enterprises (supra), this petition is allowed. The impugned order of imposing condition is set aside and it is directed that the Trial Court shall conclude the trial of the case within a period of six months and both the parties present before this Court shall co-operate with the Trial Court in concluding the trial within the time fixed by this Court. However, the respondents/plaintiffs shall have liberty to apply for imposing conditions or for any other suitable directions in accordance with law, if the petitioners will try to change the status of the immovable properties presently in their hands during the pendency of the suit. Parties to bear their costs.