Ajit Singh Vs. Gurcharan Singh - Court Judgment

Excerpt:
the case focused on the suit instituted under order 37 rule 3 of the civil procedure code, 1908 - while debating on the said suit, it was specified that the object of enacting order 37 in the code, was to ensure that the suits on the negtoiable instruments instituted, within the shorter period of limitation, was nto unnecessarily delayed by untenable pleas in defense - however, if the defense raises a triable issues, then the trial should nto be rendered prejudicial to the defendant by imposing severe harsh conditions - the court should lean in favor of a proper trial without placing unreasonable hindrances in defendant's way but duly safeguarding the right of the plaintiff - thereforee, in the present case, it was ruled that the trial court was nto fair, to insist for the deposit of cash in the court - accordingly, the defendant was directed to furnish bank guarantee for suit amount along with the estimated cost - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - a triable issue being raised, the court must lean in favor of proper trail without placing unreasonable hurdles in the defendant's way but of course duly safe guarding the plaintiff's right to successfully execute the decree he may obtain and reap its fruit without much delay. (4). in the present case, in my opinion, the interests of justice would be best served if the defendant is required to furnish bank guarantee for the amount of the suit along with the estimated costs.order(1). this is a defendant's revision directed against the order of a learned subordinate judge 1st class, delhi, dated 7-9-1966 granting him relief to appear and defend the suit in question subject to the condition that he deposits in each by way of security the suit amount of rs. 21,800/- together with the sum of rs.2,000/- on account of estimated costs on or before 24-9-1966. it may be stated that the suit had been instituted under order. 37 of the code of civil procedure.(2). on revision, the learned counsel for the defendant has submitted that the condition imposed by the court below is very onerous because the entire amount along with the estimated costs have been directed to be deposited in cash. this according to him, is arbitrary and unjust. (3). the court below has dealt with the defense and holding it to raise a triable issue granted leave, but nto being impressed by the defense, it is ordered the amount to be deposited in cash. this order is obviously passed in the exercise of the discretion of the court below and this court on revision normally does nto interfere with such discretion. it is quite correct that ordinarily the defendant is nto entitled to appear and defend a suit instituted under order 37 of the code of civil procedure without obtaining leave of the court which may be granted upon an application by the defendant disclosing facts making it incumbent on the holder of the negtoiable instrument in question to prove consideration or such toher facts which the court considers sufficient to support the defendant's claims. leave may be granted unconditionally or on terms as illustrated in order 37, rule 3(2) of the code.the policy of the law, however is nto to unduly obstruct the defendant in his defense by imposing too harsh conditions. the basis object of enacting order 37 in the code is to see that suits on negtoiable instruments instituted within the sorter period of limitation prescribed for the purpose are nto unduly delayed by untenable pleas in defense because of the obvious legal presumption arising from such documents. but at the same time when the defense does raise a triable issue, the trail must nto be rendered prejudicial to the defendant by imposing unduly harsh conditions. a triable issue being raised, the court must lean in favor of proper trail without placing unreasonable hurdles in the defendant's way but of course duly safe guarding the plaintiff's right to successfully execute the decree he may obtain and reap its fruit without much delay. difficulty or observation. beyond this, it would appear to be unfair and unjust to be the defendant if more onerous terms are imposed as a condition precedent to his appearance in court for defending the suit.(4). in the present case, in my opinion, the interests of justice would be best served if the defendant is required to furnish bank guarantee for the amount of the suit along with the estimated costs. the court below, was, in opinion nto quite fair and judicious in insisting on cash deposits in court. the learned counsel for the defendant initially agreed to this condition but later reconsidering his position submitted that the security already furnished by him in pursuance of the order of the admitting judge in this court should beheld sufficient. i do nto agree that security furnished in the present proceedings can justifiably be considered sufficient. bank guarantee would seem to me to be the only adequate security which, on the facts of this case, would satisfy the ends of justice and i order accordingly in modification of the order of the court below. the security would of course, be of a scheduled bank. the petitioners learned counsel wants time to make arrangements for the security. i grant him one month from today for furnishing the requisite security. in the peculiar circumstances of the case, there would no order as to costs. (5). before concluding, i must advert to one toher aspect, in this case the revision was presented in this court on 20-9-1966 and it was represented that certified copy of impugned order was nto available and that the same would be filed as soon as it is obtained. today, the learned counsel for the petitioner has produced before me the certified copy of the impugned order, which was ready on 22-9-1966. it is nto understood why the learned counsel did nto produce this copy. in this court immediately after its receipt as was represented by him in his application was represented by him in his application (c..m.3453-d). in future in all cases where an order is obtained from this court exempting production of the certified copy on the ground that the same has nto been made available to the applicant, the said copy should be produced within a reasonable time after it is received from the copying agency. (6). petition allowed.

Judgment:
ORDER

(1). This is a defendant's revision directed against the order of a learned Subordinate Judge 1st Class, Delhi, dated 7-9-1966 granting him relief to appear and defend the suit in question subject to the condition that he deposits in each by way of security the suit amount of Rs. 21,800/- together with the sum of Rs.2,000/- on account of estimated costs on or before 24-9-1966. It may be stated that the suit had been instituted under order. 37 of the Code of Civil Procedure.

(2). On revision, the learned counsel for the defendant has submitted that the condition imposed by the Court below is very onerous because the entire amount along with the estimated costs have been directed to be deposited in cash. This according to him, is arbitrary and unjust.

(3). The Court below has dealt with the defense and holding it to raise a triable issue granted leave, but nto being impressed by the defense, It is ordered the amount to be deposited in cash. This order is obviously passed in the exercise of the discretion of the Court below and this Court on revision normally does nto interfere with such discretion. It is quite correct that ordinarily the defendant is nto entitled to appear and defend a suit instituted under Order 37 of the code of Civil Procedure without obtaining leave of the Court which may be granted upon an application by the defendant disclosing facts making it incumbent on the holder of the negtoiable instrument in question to prove consideration or such toher facts which the Court considers sufficient to support the defendant's claims. Leave may be granted unconditionally or on terms as illustrated in order 37, Rule 3(2) of the Code.

The policy of the law, however is nto to unduly obstruct the defendant in his defense by imposing too harsh conditions. The basis object of enacting order 37 in the Code is to see that suits on negtoiable instruments instituted within the sorter period of limitation prescribed for the purpose are nto unduly delayed by untenable pleas in defense because of the obvious legal presumption arising from such documents. But at the same time when the defense does raise a triable issue, the trail must nto be rendered prejudicial to the defendant by imposing unduly harsh conditions. A triable issue being raised, the court must lean in favor of proper trail without placing unreasonable hurdles in the defendant's way but of course duly safe guarding the plaintiff's right to successfully execute the decree he may obtain and reap its fruit without much delay. Difficulty or observation. Beyond this, it would appear to be unfair and unjust to be the defendant if more onerous terms are imposed as a condition precedent to his appearance in Court for defending the suit.

(4). In the present case, in my opinion, the interests of justice would be best served if the defendant is required to furnish bank guarantee for the amount of the suit along with the estimated costs. The Court below, was, in opinion nto quite fair and judicious in insisting on cash deposits in Court. The learned counsel for the defendant initially agreed to this condition but later reconsidering his position submitted that the security already furnished by him in pursuance of the order of the admitting Judge in this Court should beheld sufficient. I do nto agree that security furnished in the present proceedings can justifiably be considered sufficient. Bank guarantee would seem to me to be the only adequate security which, on the facts of this case, would satisfy the ends of justice and I order accordingly in modification of the order of the court below. The security would of course, be of a scheduled bank. The petitioners learned counsel wants time to make arrangements for the security. I grant him one month from today for furnishing the requisite security. In the peculiar circumstances of the case, there would no order as to costs.

(5). Before concluding, I must advert to one toher aspect, In this case the revision was presented in this Court on 20-9-1966 and it was represented that certified copy of impugned order was nto available and that the same would be filed as soon as it is obtained. Today, the learned counsel for the petitioner has produced before me the certified copy of the impugned order, which was ready on 22-9-1966. It is nto understood why the learned counsel did nto produce this copy. In this court immediately after its receipt as was represented by him in his application was represented by him in his application (C..M.3453-D). In future in all cases where an order is obtained from this Court exempting production of the certified copy on the ground that the same has nto been made available to the applicant, the said copy should be produced within a reasonable time after it is received from the copying agency.

(6). Petition allowed.