Jashbhai Motibhai Patel vs Hasmukhbhai Ravjibhai Patel

K.J. Vaidya, J.—In a case under this Revision Application, the learned Judge trying a Summary Suit, surprisingly, has undertaken an exercise of comparing the alleged signature of the defendant on the suit promissory note (which itself has been counter-challenged by the defendant to be false, forged and fabricated) alongwith that of yet another signature of the defendant made on the Vakalatpatra filed by him in order to decide as to whether both these signatures were identical and made by the same and very author viz., the defendant, without raising any ''triable issue'' thereupon and permitting the defendant to lead any evidence to prove his defence. Can this ever be done, is a short question, which is being dealt with and answered in this judgment.

Briefly stated the facts of the case are, respondent-plaintiff filed a money suit, the same being Summary Suit No. 17 of 1982, in the Court of the learned Civil Judge (J.D.) Anand (for short-trial Court) against the plaintiff-defendant praying for the recovery of Rs. 780/-. It was alleged by the plaintiff that the defendant had executed a promissory note to the tune of Rs. 6000/- in his favour in the year 1979 and despite repeated demands to return the same, since the defendant refused to oblige, he was constrained to file the present suit. According to the plaintiff, though the suit was primarily based on Rs. 6000/- he has claimed an additional amount of Rs. 1080/- by way of interest and thereby praying for a total money decree to the tune of Rs. 7080/-.

2.1. The defendant on being served with summons for the judgment, submitted an application Ex. 9 praying for unconditional leave to defend the suit duly supported by an affidavit; precisely on the grounds that (i) he was an agriculturist; (ii) a false suit was filed against him; and (iii) in fact, he has not taken any amount from the plaintiff and accordingly therefore there was no occasion for him to execute any promissory note (in printed form) in favour of the plaintiff as alleged by him, (iv) the alleged writing on Pro-Note was a forgery.

2.2. The trial Court by an order dated 25th June, 1984, dismissed the said application Ex. 9, and hence feeling aggrieved and dissatisfied by the same, the petitioner-defendant herein has moved this Court by way of a Revision Application u/s 115 of the Code of Civil . Procedure 1976.

Mr. S. R. Shah, the learned Advocate appears for the petitioner-defendant, as against him, though the respondent-plaintiff is duly served, is surprisingly absent.

It was submitted by Mr. Shah, the learned Advocate for the petitioner-defendant that the impugned order passed by the trial Court rejecting application for unconditional leave to defend, was on the face of it, illegal, arbitrary and unjust and hence the same deserved to be quashed and set aside. He contended that the defendant has prima facie raised a ''triable-issue'' of forgery. According to Mr. Shah, the promissory note alleged to have been executed by the defendant and which was the very basis on which the suit amount was claimed was itself counter-alleged by the defendant to have been forged and fabricated document. He submitted that since the defendant has raised serious disputed question of fact and thereby a ''triable issue'', the trial Court ought to have granted an unconditional leave to defend the case. In support of his submissions, Mr. Shah has invited my attention to a leading decision on the point reported in Mechelec Engineers and Manufacturers Vs. Basic Equipment Corporation, in the case of Mechalec Engineers & Manufacturers v. Basic Equipment Corporation, wherein it has been observed that:

The following principles are 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 its merits the plaintiff is not entitled to leave to sign judgment and 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 positively good defence, the plaintiff is not entitled to sign judgment and 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 to say although the affidavit does not positively and immediately make it clear that he has a defence, yet shows such a state of facts as leads to the inference that as the trial of the action he may be able to establish a defence to the plaintiff''s claim that the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion imposes conditions as to the time or mode of trial but not as to payment into Court or furnishing security.

(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and 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 then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence.

There appears to be considerable force in the submissions made by Mr. Shah. There is no difficulty in appreciating that the trial Court has clearly over-looked material facts raising probable defence and thereby a ''triable issue''. It has further got to be appreciated that the defendant has challenged and disputed the very existence of the foundation of the suit viz., the suit promissory note itself on the ground of being forged and fabricated document. If that is the position, then such a seriously disputed fact per se constitutes a ''triable issue'' indicating that the defendant has fair and reasonable defence. To put it other way, it will be just too premature and abrupt to hold at such a crucial stage of suit proceedings that the defence raised by the defendant was illusory or sham or moonshine. Under such circumstances, it is indeed surprising to find a trial Court while trying a summary suit taking upon itself impermissible exercise of comparing the disputed signature of the defendant on the promissory note with an undisputed signature of the defendant on his Vakalatpatra in absence of any other evidence. Such a comparison of the disputed signature by itself is nothing but a mere personal belief, opinion of the Judge concerned and the same cannot determine the issue of forgery without being tried. Further still, once the defendant raises a probable defence, it will be just illegal, unfair and unjust to deny him a reasonable opportunity to prove his defence. This is simply condemning the defendant without affording him opportunity to make goods otherwise ''triable-issue''. The personal belief, opinion of a Court bereft on any evidence on the record, howsoever honest it may be, can turn out to be erroneous to the prejudice of a party so affected by it. The defences such as forgery or fabrication of documents are obviously the allegations of gravest nature. They undoubtedly raise disputed questions of facts constituting by themselves the ''triable-issue''. Such issues cannot be decided by mere ipse dixit of the Court. Only hand-writing expert of other person who had an opportunity of seeing the defendant writing and was knowing and familiar with the same, can be said to be a competent witness to give evidence. Thus, the issues which are triable, cannot be dispensed with by making it comparable and that too by Court itself, unless there is some patent and intrinsic circumstance (keeping aside the subjective view of the Court) on the record per se indicating that the defence raised is manifestly improbable, sham or dishonest.

Thus, in the facts and circumstances of this case, it is so very clear that the defendant by denying the very existance and execution of the suit promissory note, in fact, has raised a probable defence and thereby a ''triable-issue''. It hardly requires to reiterate the legal position in such matters that once a party raises a ''triable-issue'' leave must be given to defend and when that is given, it must be given unconditional otherwise such leave may become illusory.

6.1. Obviously, therefore, the impugned order passed by the trial Court rejecting the application Ex. 9 filed by the petitioner-defendant seeking permission to grant unconditional leave to defend the case is illegal and hence deserves to be quashed and set aside.

In the result, this Revision Application is allowed. Rule made absolute with no order as to costs. The trial Court is directed to permit the defendant to defend the case unconditionally. The defendant is further directed to file his written statement on or before 15th August, 1990. Having regard to the facts that the suit is of the year 1984, the trial Court is further directed to dispose of the same as expeditiously as possible.