S.N. Kapoor, J.
(1) This revision is directed against an order dated 23.2.1985 dismissing the application of the defendant/petitioner under Order xxxvii Rule 3 read with Rule 7 and u/s 151, CPC and decreeing the suit.
(2) The relevant facts giving rise to the present revision are as under : The respondent/plaintiff filed a suit under Order xxxvii for recovery of Rs. 50,000.00 on the basis of three cheques; one of Rs. 30,000 .00 dated 30th April, 1982; another for Rs.lO,000.00 dated 5th May,1982 and the third one for Rs.l0,000.00 dated 8th May, 1982. These three cheques were issued by the petitioner in favor of the opposite party in consideration of payment of taxi charges hired by the opposite party for the business purposes of the defendant/petitioner between 11.11.1981 up to middle of February, 1982. All the three cheques were dishonoured. The plaintiff/respondent has filed a suit for recovery of amount under Order xxxvII.
(3) According to the petitioner''s version he put in appearance on 23.10.1982 and filed address. The plaintiff/respondent thereafter got the summons for judgment issued. It was served on the defendant on 26.8.1983. According to the petitioner he suffered a attack of spondalites, high blood pressure and eye-rites and thus , remained totally immobilised between 20.7.1983 to 14.9.1983. He was advised not to move out of bed and in case he did so he would be doing so at the cost of his life. In these circumstances, he could not contact his Counsel and brief him to prepare defense and could not put his defense accordingly. Consequently he could not file the application for leave to defend in time. On 15th September, 1983, he moved two applications; one under Order xxxvii Rule 3 read with Section 151, CPC and another under order xxxvii Rule 3(7) read with Section 151, CPC submitting that for these foregoing reasons, delay in moving an application for leave to defend and contest the suit was not intentional. He accordingly sought condensation of delay. The defendant/petitioner also sought leave to defend to contest the suit inter alias on the ground that he never approached the respondent/plaintiff for helping him in business activities or to pay the amount of hire charges of taxies allegedly hired for his business. As a matter of act the petitioner requested the plaintiff to help him in getting a video set.There upon the respondent/plaintiff approached the Televista Company and brought one set of video for the defendant/petitioner. But as it was found defective the video set was returned. The three blank cheques were given for payment to the plaintiff/respondent for payment to Televista Company after signing them. These cheques were left with the plaintiff/respondent in the hope that she would bring video set for the petitioner but she filled up her own name and she also kept the video. When the plaintiff/respondent was requested to return the said cheques she failed to deliver them on the pretext that the same were not readily available and she would return them as and when she would find the cheques. As such these cheques were without consideration and the petitioner was not liable to pay anything.
(4) The plaintiff /respondent contested these applications, inter alias on the ground that it was neither accompanied by properly verified affidavit, nor it disclosed any plausible defense and it was just a moon shine and that it was barred by time. The plaintiff denied the allegation about the purchase of video set.
(5) It appears from the perusal of the file that on 19.12.1983 in view of the objections taken by the plaintiff/respondent moved an application for filing detailed affidavit containing all those contentions which have been mentioned above. The defendant/petitioner had also moved an application for amendment, in order to add in the heading of the application under Order xxxvii Rule 3(7) read with Section 151, CPC read with Section 5 of the Limitation Act 1953" by way of an abundant precaution to avoid any technical objection.
(6) However on 3.5.1984, the defendant/petitioner was directed to lead evidence on 28.5.1984 at his own responsibility on the point of condensation of delay by framing an issue. On 28.5.1984 the matter was adjourned on the ground of sickness of the applicant. On 24.7.1984 on the request of the Counsel for the petitioner learned Additional District Judge appointed Sh. Mairiof Sharma, Advocate as Local Commissioner to record the statement of the defendant on 4.8.1984 at 11 a.m. on 10.8.1984. The report was filed and the case was adjourned to 17.9.1984 for remaining evidence. On 17.9.1984 last opportunity Was granted. On 15.10.1984 the case was again adjourned for examining Dr. J.S. Mathur on 11.11.1984. It was taken up on 12.11.1984 and adjourned to 4.12,1984 for evidence on 4.12.1984again Dr. J.S. Mathur did not appear and the case was adjourned to 11.12.1984 for parties evidence. On 11.12:1984 again in absence of the doctor, evidence of the defendant was closed. The plaintiff / opposite party examined the plaintiff/respondent alone. The case was adjourned for arguments to 14th January, 1985. The matter was taken up on 17.1.1996 as the Presiding Officer was on leave. The case was adjourned to 22.2.1985 and after hearing the arguments on 23.2.1985 the impugned order .was passed. The Learned Trial Court by rejecting, applications for condensation of delay and decreed the suit for recovery of Rs. 15,000.00 with pendent life and future interest @,6%.per annum
(7) Peeling aggrieved by the above said order die present revision petition has - been filed on various grounds challenging the order refusing to condone the delay in filing the application. These grounds and submissions of learned Counsel for the petitioner shall be dealt with at appropriate places.;
(8) As regards the first point relating to condensation, of delay in moving an application for leave to defend provisions under Order 37 Rule 3 Sub-rule (7), Cpc is relevant and is being reproduced here:
"The Court or Judge, may for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit
(9) In ordinary course, an application for leave to defend should be filed within ten days from the service of summons for judgment. The above said sub-rule allows and empowers the Court to entertain an application for leave to defend even after expiry of the said period "for sufficient cause shown by the defendant" for the delay in entering an appearance or in applying for leave to defend the suit" by excusing die delay. Sufficient cause for the above said purpose means a cause which is beyond the control of the party invoking the provisions of Sub-rule (7) of rule 3 of Order 37. The cause for delay in making the application, which by due care and caution should have been avoided may not be sufficient cause where, however neither in action nor want of bona fide can be imputed to the applicant a liberal construction of the provisions has to be made in order to advance substantial justice.
(11) Before proceeding further, let me refer to observations in
" ........The expression "sufficient cause" should, Therefore, be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day''s delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. Litigants including the State are accorded the same treatment and the law is administered in an even-handed manner."
(11) Let us see how far the petitioner has succeeded in proving "sufficient cause". In this case the learned Trial Court got the statement of the petitioner recorded on commission 10th August, 1984 as the petitioner was unable to appear in Court. From his statement it appears that he was patient of spondalites, high blood pressure and eye rites for the last about 10 years. During rainy seasons he became immobilised, body became stiff and he could not read and write. In July, , 1983 he was absolutely immobilised. His mental efficiency becomes absolutely nil. He was advised complete bed rest and he remained under treatment of Dr. J.S. Mathur up to middle of September, 1983. As soon as he recovered he instructed his Counsel and moved tine application. In cross-examination he stated that he could not but the same could be produced at a later stage. While it is true that he could neither show any bill issued by the chemist nor produce Dr. J.S. Mathur for recording his statement, but it is also true that in his cross-examination it was not even suggested that stage that he was not suffering from any such disease and he got tine commission issued on false pretext. Learned Counsel for the petitioner submitted that the fact that Dr. J.S. Mathur should not be examined has to be - considered in the light of the lethargy on die part of the witnesses to appear in Court. One should also not forget that he did produce a medical certificate of Dr. J.S. Mathur indicating that he was suffering from acute form of spondalites from 17.7.1983 to 20.9.1983 and was advised complete bed rest during this period. The respondent claimed that she saw the defendant in August, 1983 at the house of one Chunni (also called Unni) who tried to bring about a compromise between them. But she had not told this fact to her Lawyer. This Chunni @ Unni had not been produced from the side of the defendant also.
(12) If justice-oriented approach requires that matter should preferably be heard on merits unless the case is hopelessly without merit, one has to take liberal approach in condoning the delay. In such circumstances, when two views are possible; one which has been taken in the present case by the learned Trial Court and the other view that what die defendant/respondent has claimed might also be true, it should be deemed desirable to condone the delay. It may be mentioned that when both the parties entered into witness box to prove the matter then in the matters like the present one, like a prosecutor in criminal case, the defendant/petitioner was not supposed to prove the case beyond all reasonable doubt. He was just supposed to establish that his version is much more probable than that of the opposite party. There are two factors in favor of the petitioner. Firstly the fact that he had to be examined on commission on account of his illness, itself proved that he was suffering from spondalites as he stated; secondly he did produce the medical certificate on record but could not procure attendance of Dr. J.S. Mathur. If we draw adverse inference against the petitioner we have to draw adverse inference against the plaintiff/respondent also for she did not produce the witness Chunni @ Unni.
(13) So far as the question of granting of leave is concerned. Supreme Court in
"(A)If the defendant satisfies the Court that he has a good defense 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 treble issue indicating that he has a fair or bona fide or reasonable defense although not a positively good defense 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 had a defense, yet, she was such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defense to the plaintiff''s claim 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 impose 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 defense or the defense set up is illusory or sham on 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 defense or the defense 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 defense 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 defense."
(14) In that case the defendant/appellant firm admitted the issue of the cheque by its Managing Partner, but it denied any privity of contract with the plaintiff firm. In the case in hand the defendant admits that he had issued the cheques but the cheques were given to the plaintiff for the purpose of bringing a video set. According to the defendant the plaintiff did bring a video set but that was defective and returned. He did not ask her hire taxies for business purpose. The plaintiff had mentioned her own case in counter affidavit filed by her. In this connection one of the objections taken was that affidavit was not properly verified. In this regard let us seethe affidavit accompanied the application under Order xxxvii Rule 3(4), Cpc which is a short affidavit. It is mentioned in the affidavit that statement of facts contained in the accompanying application were true to his knowledge and should be read'' as part of this affidavit. The contents of the said affidavit were verified as "true to my knowledge". It has been held in Gurbachan Singh,Maksudanlal v. Sudershan Trading Co., 1980 Rlr (Note) 68 on the basis of judgment in Jagir Singh v. Mohinder Kaur 197, R.L.R.565 that a shorter affidavit was sufficient and that it was unnecessary to repeat the grounds in the affidavit and the Trial Court was thus wrong in finding the affidavit to be defective. As such the application could not be rejected on this ground.
(15) If we consider observation in the case of Mis. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation (Supra) as well as in Santosh Kumar Bhai Moot Singh (supra), it would appear that the defense of the accused did raise a triable issue. For in both the cases the defendant admitted execution of the cheque. In the earlier case it was pleaded that there was no privity of contract and in the later case it was pleaded that cheque was only given as security of the good that the plaintiff supplied to the defendant and while cash payment had already been made . Similarly in the case in hand if the cheque was given for the purpose of purchasing a video set which was found defective and returned. The three cheques had served their purpose. In such circumstances, in view of the two Supreme .Court judgments, it appears that the plea of the defendant/petitioner raised an issue of fact of trust and good faith of which could only be investigated after recording evidence. Thus, the defense did raise triable issues. The learned Trial Court has failed to see that the stage of proving can only come after the defendant entered her appearance and defend the suit.
(16) In view of the foregoing, I feel that the delay in filing the application for leave to defend has to be condoned and it is felt that leave to defend is also required to be given. Accordingly, the revision petition is allowed. Parties are left to bear their own costs
(17) A copy of this order be sent to the Trial Court through learned District Judge for information and for proceeding in the case accordingly.
