B.R. ARORA, J.—This revision petition is directed against the order dated 31st of May, 1988, passed by the District Judge, Pali, by which the learned District Judge, Pali, allowed the application under 0.37 Rr. 3 and 5 of the Code of Civil Procedure filed by the petitioner defendants on certain conditions.

2. Briefly stated the facts of the case are that plaintiff Shantilal filed a suit under 0.37 C.P.C. against Nemichand and Babulal for the recovery of Rs. 12,500/-. This suit was based on a Khata dated 17.10.81 executed by the defendants after settling the whole account and it was admitted that an amount of Rs. 35,000/- is outstanding which would be paid in 14 equal instalments of Rs. 2500/- each. As the defendants have not paid the first five instalments, hence the plaintiff was forced to file the present suit. The notices of this suit were issued to the defendant under 0.37 r.2 C.P.C. and the defendants put up their presence and filed the application under 0.37 R. 3 (5) C.P.C. for leave to defend the suit, this application for leave to defend the suit was contested by the plaintiff and the learned District Judge, Pali by his order dated 31st of May, 1988, decided the application filed by the defendants. According to the District Judge, the defendants have only a plausible case and, therefore, the learned District Judge passed a conditional order and allowed the defendant to defend the suit on the condition hat if the defendants deposit the suit amount of Rs. 12,500/- within 1-1/2 months from the date of order in the court or in the alternative if they furnish an unconditional bank guarantee within 1-1/2 months then they are allowed to defend the suit. In case these conditions are not complied with, the permission granted by he Court will automatically stand cancelled. It is against this order, the present revision petition has been filed.

3. I have heard learned counsel for the parties. Mr. H.C. Jain counsel for the petitioner has submitted that the plaintiff has set up a new case in the plaint from that of the notice dated 7th of June, 1984 which was given by the plaintiff and the reply to which was given by the defendant. According to him in the notice, there is no mention regarding the old account and there is inconsistency between the stand taken in the notice with that of the plaint. According to Shri Jam, heavy burden lies on the plaintiff to prove his case. He has further submitted that the Khata in question is not signed by Babulal, and Nemichand denied the execution of the Khata. The further contention of Mr. Jain is that it is very unnatural that the person will lend Rs. 35000/- without interest and, therefore, it appears from the Khata that forgery has been committed by the plaintiff. Lastly it was contended that no reasons have been given by the court why the unconditional order has not been passed. He further submitted that when a triable case is made out then the permission to defend the suit should be granted unconditionally. In support of this contention Shri Jain has placed reliance on the Judgment of Machalee Eng. and Manf. vs. Basic Eng. Corpn (1), Fatehlal vs. Sunderlal (2), A.C. Traders vs. Nandkishore (3), and Samnidi Kasi Visvanadham vs. Gada Annapurnamm (4).

4. Mr. Shishodia, counsel for the respondent, on the other hand submitted that trial court has recorded the finding that only plausible cases has made out and the defendant can be allowed to defend the suit on certain conditions and the findings recorded by the trial court are purely finding of fact and, therefore, no revision is maintainable. Shri Shishodia further submitted that the trial court even compared the signatures of the defendant Nemichand with that of Khata as well as the letter written by his and came to the conclusion that both these documents bear the handwriting of Nemichand. According to Mr. Shishodia, the Court was within its jurisdiction to do so in view of the provisions of S.73 of the Indian Evidence Act. He also placed relianc

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