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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Gh. Mohammad Mir, J.
Khazan Chand - Appellant
Versus
Piare Lal - Respondent
CMP (Suit) Nos. 62 And 77/1978
Decided On : 17 July, 1978
ORDER 6 RULE 17 CPC - AMENDMENT OF APPLICATION - PERMISSION TO APPEAR AND DEFEND SUIT - GROUNDS FOR PERMISSION - PAYMENT INTO COURT - CONDITION - TRIALS ISSUE - NO CONDITION FOR PAYMENT INTO COURT - APPLICATION GRANTED UNCONDITIONALLY - WRITTEN STATEMENT TO BE FILED WITHIN A FORTNIGHT.
Fact of the Case:
Defendant applied for permission to appear and defend a suit for recovery of money on the basis of a promissory note. The plaintiff objected, arguing that the application was not in accordance with law and that no grounds for permission to appear and defend the suit had been furnished. The defendant then applied to amend the application to include the grounds for permission to appear and defend the suit.
Finding of the Court:
The court held that the defendant should be permitted to supply the grounds for permission to appear and defend the suit as that would facilitate the determination of the real dispute between the parties. The court also held that the defendant had raised a triable issue in the case and that, therefore, no condition for payment into court of the amount of the promissory note could be imposed.
Issues: Whether the defendant should be permitted to amend the application for permission to appear and defend the suit.
Ratio Decidendi: The court held that the defendant should be permitted to amend the application for permission to appear and defend the suit because the grounds raised in the application prima facie appeared to be bona fide and raised triable issues between the parties. The court also held that the defendant had a bona fide and reasonable defence to raise at the trial and that, therefore, he was entitled to the permission to do so without any condition whatsoever.
Final Decision: The court granted the defendant's application to amend the application for permission to appear and defend the suit and permitted the defendant to appear and defend the suit unconditionally. The defendant was ordered to file his written statement within a fortnight.
2. From a perusal of the application for grant of permission to appear and defend the suit submitted by the defendant on 8th of June, 1978, it appears that though in the main petition it has been submitted by him that he would like to appear and defend the suit yet in the prayer clause the only prayer was for permission to appear. On a reading of this application as a whole I am of the view that the application be regarded for permission to appear and defend the suit as in Clause 2 of the application, the defdt. has clearly stated that he would like to appear and defend the suit of the plaintiff. In that view of the matter it was not necessary for the defendant, to apply for the amendment of the application dated 8th June, 1978, seeking permission to defend the suit also. However, as no grounds had been given for permission to appear and defend the suit, the application dated 30th June, 1978, for amendment is, infact for the permission to supply the grounds on the basis of which the defendant would like to appear and defend the suit.
3. One of the grounds raised by the defendant for permission to appear and defend the suit was that the promissory note was without consideration inasmuch as he had received only Rs. 21.000/- and not Rs. 29,000/- as is alleged by the plaintiff. Keeping all the matters in view I am of the opinion that the defendant should be permitted to supply the grounds for permission to appear and defend the suit as that would facilitate the determination of the real dispute between the parties. The necessary permission to submit grounds therefore, is granted.
4. During the arguments Mr. Sethi, learned counsel for the plaintiff though vehemently argued that no grounds for permission to appear and defend the suit be permitted to be furnished at this stage, also submitted that in case the court was of the view that the permission to submit the grounds had to be given, the defendant in that case be asked to make the p
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