Alla Venkata Kistnayya vs Alapati Ramaswami

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

defendant.

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 Immovable 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.

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 (Parambathkandi) Olayatt Kunhu Vs. Ussan Kasim Sait and Another, . 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.

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.