Pawan Kumar vs Jagdev Singh

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned

order dated 15.05.2010, Annexure P1 passed by learned Civil Judge (Senior Division), Bathinda vide which learned trial Court allowed the

application of Respondent-Defendant filed under Order XXXVII, Rule 3(5) of the Code of CPC (for short '' Code of CPC '') for leave to defend

unconditionally.

I have heard learned Counsel for the parties and have gone through the whole record including the impugned order passed by learned trial

Court.

Brief facts relevant for the decision of the present revision petition are that, a suit for recovery of Rs. 74,560/- was filed by Petitioner-Plaintiff

against Respondent-Defendant under Order XXXVII Code of CPC on the basis of pronote and receipt allegedly executed in his favour by

Respondent-Defendant. Defendant put in appearance and filed application for leave to defend the said suit unconditionally on the plea that he has

substantial defence to raise. He has taken the specific plea that he had been visiting the Commission Agent shop of Petitioner-Plaintiff situated at

Goniana since 2001 and that in the month of April, 2007 he sold 81 bags containing 25 kgs. wheat each at the shop of Plaintiff and the Plaintiff

retained entire amount of the same. He again sold his Narma crop for Rs. 2,977/- on 21.09.2007 regarding which receipt was issued by the

brother of present Petitioner-Plaintiff, which was placed on the file. Respondent-Defendant again sold his Narma crop for Rs. 33,346.92p. on

09.10.2007 at the said shop of Plaintiff and regarding the same he filed photocopy of the receipt. Further plea has been taken that the

Respondent-Defendant settled the account with the Plaintiff on that day. However, thereafter Plaintiff represented to Defendant that some

formalities of Income Tax department are to be completed and his thumb impressions are required on some documents and, thus, thumb

impressions of the Defendant were taken on some blank papers and the same were converted into the present pronote and receipt by the

Petitioner-Plaintiff. Further plea has been taken that he had stopped visiting the shop of the Plaintiff and hence, the present suit has been filed.

On the other hand, Plaintiff has taken the plea that he is not the partner in firm, namely, M/s Des Raj Jagjiwan Ram, which belongs to his brother

and that he is only his employee. However, the specific pleas, which have been taken by the Respondent-Defendant that he used to sell his

produce at the shop of M/s Des Raj Jagjiwan Ram and there the account also used to be maintained and that he had stopped visiting the said

shop, are not denied specifically. It was not for the Respondent-Defendant to enquire as to who are the partners in the firm, which he used to visit

and where Petitioner-Plaintiff used to be present.

It is pertinent to reproduce the relevant provision i.e. Order XXXVII, Rule 3(5) of Code of Civil Procedure, which reads as under:

(5) 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:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the Defendant do not indicate that he has

a substantial defence to raise or that the defence intended to be put up by the Defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the Plaintiff is admitted by the Defendant to be due from him, leave to defend the suit

shall not be granted unless the amount so admitted to be due is deposited by the Defendant in Court.

A bare perusal of the said provision shows that leave to defend shall not be refused unless court is satisfied that the facts disclosed by the

Defendant do not indicate that he has a substantial defence to raise or the defence intended to be put up by the Defendant is frivolous or vexatious.

On the facts and circumstances of the present case, it cannot be said that the facts disclosed by the Respondent-Defendant do not indicate that he

has substantial defence to raise or the defence intended to be put up by the Defendant is frivolous or vexatious.

Law has been well settled in Surya Dev Rai Vs. Ram Chander Rai and Others, by Hon''ble Apex Court that mere error of fact or law cannot be

corrected in the exercise of supervisory jurisdiction of this Court. This Court can interfere only when the error is manifest and apparent on the face

of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice

has occasioned thereby.

In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in

allowing the application of Respondent-Defendant granting leave to defend the present suit, warranting interference by this Court.

There is no merit in the present revision petition. The same is, hereby, dismissed.