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TMI Blog1958 (2) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ode of Civil Procedure. 3. The defendants applied for leave to defend the suit under r. 3 of that Order. 4. The learned trial Judge held that the defence raised by the defendants raises a triable issue, but he went on to hold that the defendants have not placed anything on the file to show that the defence was a bona fide one. 5. Accordingly, he permitted the defendants to appear and defend the suit on the condition of their giving security to the extent of the suit amount and the costs of the suit. 6. The defendants applied for a review but failed. They then applied under Art. 227 of the Constitution to the Delhi Circuit Bench of the Punjab High Court and failed again. As a result, they appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been exercised by the learned trial Judge, no appeal can lie against it unless there is a grave miscarriage of justice or flagrant violation of law and he quotes D.N. Banerji v. P. R. Mukherjee MANU/SC/0053/1952 : [1953]4SCR302 and Waryam Singh v. Amarnath MANU/SC/0121/1954 : [1954]1SCR565 . 10. Now what we are examining here are laws of procedure. The spirit in which questions about procedure are to be approached and the manner in which rules relating to them are to be interpreted are laid down in Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal Baya MANU/SC/0044/1955 : [1955]2SCR1 . Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the House of Lords in England where a similar rule prevails. It is Jacobs v. Booth's Distillery Company (1901) 85 L.T. 262. Judgment was delivered in 1901. Their Lordships said that whenever the defence arises a triable issue , leave must be given, and later cases say that when that is the case it must be given unconditionally, otherwise the leave may by illusory. See, for example, Powszechny Bank Zwiazkowy W. Polsce v. Paros [1932] 2 K.B. 353, in England and Sundaram Chettiar v. Valli Ammal (1935) I.L.R. 58 Mad. 116 in India. Among other cases that adopt the triable issue test are Kiranmoyee Dassi v. J. Chatterjee (1945) 49 C.W.N. 246, and Gopala Rao v. Subba Rao A.I.R. (1936) Mad. 246. 13. The learned counsel for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cases where speedy decisions are desirable in the interests of trade and commerce. In general, therefore, the test is to see whether the defence raises a real issue and not a sham one, in the sense that, if the facts alleged by the defendant are established, there would be a good, or even a plausible, defence on those facts. 15. Now, what is the position here ? The defendants admitted execution of the cheque but pleaded that it was only given as collateral security for the price of goods which the plaintiff supplied to the defendants. They said that those goods were paid for by cash payments made from time to time and by other cheques and that therefore the cheque in suit had served its end and should now be returned. They set out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the facts alleged by the defendant are duly proved they will afford a good, or even a plausible, answer to the plaintiff's claim. Once the Court is satisfied about that, leave cannot be withheld and no question about imposing conditions can arise; and once leave is granted, the normal procedure of a suit, so far as evidence and proof go, obtains. 19. The learned High Court Judge is also error in thinking that even when the defence is a good and valid one, conditions can be imposed. As we have explained, the power to impose conditions is only there to ensure that there will be a speedy trial. If there is reason to believe that the defendant is trying to prolong the litigation and evade a speedy trial, then conditions can be impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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