# Sharda Singh Revisionist v. Vijay Kumar Rastogi

- **Citation:** (2023) 9 ILRA 911
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-12
- **Case number:** Civil Revision No. 44 of 2023
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharda-singh-revisionist-v-vijay-kumar-rastogi-50792
- **Pages:** 5

## Headnote

Civil Law - Code of Civil Procedure, 1908 -
Order 37- Rule 3(5), Rule 4 - Constitution
of India, 1950 -Article 227 - Grant of
Unconditional Leave to Defend - Revisionist
challenged the order dated 03.03.2023, granting
unconditional leave to the respondent to contest
a summary suit under Order 37 C.P.C. for
recovery of Rs. 68,55,000/-, allegedly lent
through cheques, with only Rs. 1,20,000/-
repaid. Revisionist claimed the respondent's
defence was malicious and lacked bona fide
triable issues, citing dishonoured cheques and
relying on B.L. Kashyap. Respondent denied
taking any loan, alleging payment of Rs.
31,80,000/-
for
property
purchase
and
collusion by the revisionist's husband. Court
held that the respondent raised a triable issue,
denying the loan and asserting payments,
which did not fall under the fourth eventuality
of B.L. Kashyap (plausible but improbable
defence requiring conditions). Neither party
provided material evidence to support their
claims. The defence was not frivolous or
vexatious,
entitling
the
respondent
to
unconditional leave under Order 37 Rule 3(5).
The
trial
court's
order
was
free
from
jurisdictional
error
or
illegality.
Revision
dismissed. (Paras 12, 16-19)

Revision dismissed.
List of Cases cited:
B.L. Kashyap & Sons td. Vs JMS Steels &d
Power Corporation & anr., (2022) 3 SCC 294

## Text

9 All. Sharda Singh Vs. Vijay Kumar Rastogi
911
execution of will was itself fraudulent. This
indicates that the intention of the State
authorities was to reopen the entire matter
and reheared it on merits & re-examined all
the evidences.

28. The application for recall was in
fact an application for review of the order
of prescribed authority dated 16.03.1991
rather than an application for correction. It
is undoubtedly clear that the prescribed
authority does not have any power of
review as the same is not prescribed in the
Act of 1960 and under the garb of review
the application for recall was preferred on
the ground that the State counsel did not
appear to contest the matter.

29. It is further noticed that in case
the State was aggrieved by the order dated
16.03.1991 passed by the prescribed
authority, it was always open for them to
prefer an appeal under Section 13 of the
Act of 1960 before the Commissioner but
instead of filing an appeal the application
for recall was preferred.

30. In light of the above, this Court is
of the considered view that the jurisdiction
exercised by the prescribed authority
purportedly exercised under Section 13(A)
of the Act of 1960 is not vested in him and
hence the impugned order is illegal and
arbitrary and is accordingly set aside.

31. With the above observations, the
writ petition stands allowed.
----------
(2023) 9 ILRA 911
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.
Civil Revision No. 44 of 2023

Sharda Singh ...Revisionist
Versus
Vijay Kumar Rastogi ...Opposite Party

Counsel for the Revisionist:
Sri Rajesh Kumar Singh, Sri Krishna Kant
Vishwakarma

Counsel for the Opposite Party:
G.A.

Civil Law - Code of Civil Procedure, 1908 -
Order 37- Rule 3(5), Rule 4 - Constitution
of India, 1950 -Article 227 - Grant of
Unconditional Leave to Defend - Revisionist
challenged the order dated 03.03.2023, granting
unconditional leave to the respondent to contest
a summary suit under Order 37 C.P.C. for
recovery of Rs. 68,55,000/-, allegedly lent
through cheques, with only Rs. 1,20,000/-
repaid. Revisionist claimed the respondent's
defence was malicious and lacked bona fide
triable issues, citing dishonoured cheques and
relying on B.L. Kashyap. Respondent denied
taking any loan, alleging payment of Rs.
31,80,000/-
for
property
purchase
and
collusion by the revisionist's husband. Court
held that the respondent raised a triable issue,
denying the loan and asserting payments,
which did not fall under the fourth eventuality
of B.L. Kashyap (plausible but improbable
defence requiring conditions). Neither party
provided material evidence to support their
claims. The defence was not frivolous or
vexatious,
entitling
the
respondent
to
unconditional leave under Order 37 Rule 3(5).
The
trial
court's
order
was
free
from
jurisdictional
error
or
illegality.
Revision
dismissed. (Paras 12, 16-19)

Revision dismissed.
List of Cases cited:
B.L. Kashyap & Sons td. Vs JMS Steels &d
Power Corporation & anr., (2022) 3 SCC 294
(Delivered by Hon'ble Saral Srivastava, J.)
912 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard learned counsel for the
revisionist.

2. The revisionist, who is plaintiff in
Original Suit No.37 of 2020 under Order
37 C.P.C., has assailed the order dated
03.03.2023 passed by Civil Judge (Senior
Division), Varanasi granting unconditional
leave to the respondent to contest the suit
instituted by the revisionist.

3. The suit has been instituted on the
ground that the revisionist has lent an
amount of Rs.69,75,000/- through various
cheques and other modes to the respondent,
but the respondent has returned only
Rs.1,20,000/-.

4. In the suit, notices were issued. On
appearance of respondent in the suit, the
revisionist as per procedure contemplated
under Order 37 Rule 4 of C.P.C. served the
respondent a summon for judgment in form
No.4-A in appendix B supported by the
affidavit stating the details in the paragraph
4 of the affidavit regarding various
payments totalling Rs.1,20,000/- paid by
the respondent through various cheques.
The respondent further in para 5 of the
affidavit filed in support of summons of
judgment have disclosed the details of
cheque given by the respondent which was
dishonoured
by
the
bank
due
to
insufficiency of fund. In para 6 of the
affidavit, the revisionist has disclosed two
cheques
received
from
respondent
amounting to Rs.1,20,000/- which were
encashed. It is further stated that the
respondent became dishonest and does not
intend to pay the money given by the
revisionist, and since the respondent has no
defence to suit, therefore, respondent is not
entitled to any opportunity as provided
under Order 37 Rule 3 (5) of C.P.C. to
defend the suit.

5. The respondent filed reply to the
aforesaid affidavit denying the fact that
they have taken any loan from the
revisionist. It is further stated that the
husband of the revisionist is Sub Inspector
and the suit has been instituted with the
collusion of her husband. It is further stated
that the respondent has given an amount of
Rs.31,80,000/- through various cheques
details
whereof
has
been
stated
in
paragraph 11 of the reply of the respondent
and to avoid the payment of such amount,
the suit has been instituted by the
revisionist. Accordingly, it is prayed that
the respondent be granted unconditional
leave to contest the suit.

6. Challenging the order, learned
counsel for the revisionist has contended
that the subordinate court has committed
material irregularity and failed to exercise
jurisdiction vested in it in rejecting the
application. It is submitted that perusal of
the reply of the respondent against the
affidavit filed by the revisionist in support
of summon reveals that the defence set up
by the respondent is malicious and the
respondent has no plausible defence to
contest the suit. Thus, it is submitted that
the subordinate court has erred in law in
granting
unconditional
leave
to
the
respondent to contest the suit. It is
submitted that perusal of objection reveals
that no bona fide or real triable issue is
raised in the objection and in such
condition, the trial court while granting
leave ought to have imposed some strict
condition in granting the leave.

7. I have considered the contentions
of learned counsel for the revisionist and
perused the record.

8. The facts as emanate from the
record are that the suit has been instituted
9 All. Sharda Singh Vs. Vijay Kumar Rastogi
913
by the revisionist under Order 37 of C.P.C.
for
recovery
of
an
amount
of
Rs.68,55,000/- along with interest on the
ground that the revisionist has given a loan
of Rs.68,55,000/- through various cheques
out of which respondent has paid only
Rs.1,20,000/-. The further ground in the
suit is that two cheques given by the
respondent were dishonoured due to
insufficiency of fund.

9. The subordinate court issued notice
to the defendant. On appearance of the
defendant, the revisionist filed summons
along with affidavit in the Form 4-A of
Appendix B again reiterating that the
revisionist has paid Rs.68,55,000/- through
various cheques the details whereof has
been stated in paragraph 4 of the affidavit.
The details with regard to the cheques
issued by the respondents which were
bounced have been stated in the paragraph
5 by the revisionist in the affidavit.

10. The respondent has denied the
factum of taking any loan from respondent
and has further set up a defence that they
have paid amount of Rs.31,80,000/- for the
purchase of property of revisionist. The
respondent has further denied the issuance
of any cheques which were dishonoured by
the bank.

11. In the aforesaid backdrop, the trial
court after considering the law laid down
by the Apex Court held that the respondent
has raised a triable issue and is entitled to
unconditional leave to defence.

12. Learned counsel for the revisionist
has placed reliance upon the judgment of
Apex Court in the case of B.L. Kashyap
and Sons Limited Vs. JMS Steels and
Power Corporation and Another, 2022 (3)
SCC 294. In the context of the present case
paragraph 33.1 to 33.3 are relevant and
they are reproduced hereinabelow:

"33.1. As noticed, if the defendant
satisfies the Court that he has substantial
defence, i.e., a defence which is likely to
succeed, he is entitled to unconditional
leave to defend. In the second eventuality,
where the defendant raises triable issues
indicating a fair or bona fide or reasonable
defence, albeit not a positively good
defence, he would be ordinarily entitled to
unconditional leave to defend. In the third
eventuality, where the defendant raises
triable issues, but it remains doubtful if the
defendant is raising the same in good faith
or about genuineness of the issues, the trial
court
is
expected
to
balance
the
requirements of expeditious disposal of
commercial causes on one hand and of not
shutting out triable issues by unduly severe
orders on the other. Therefore, the trial
court may impose conditions both as to
time or mode of trial as well as payment
into the Court or furnishing security. In the
fourth eventuality, where the proposed
defence appears to be plausible but
improbable, heightened conditions may be
imposed as to the time or mode of trial as
also of payment into the Court or
furnishing security or both, which may
extend to the entire principal sum together
with just and requisite interest.

33.2. Thus, it could be seen that
in the case of substantial defence, the
defendant is entitled to unconditional
leave; and even in the case of a triable
issue on a fair and reasonable defence, the
defendant
is
ordinarily
entitled
to
unconditional leave to defend. In case of
doubts about the intent of the defendant or
genuineness of the triable issues as also the
probability of defence, the leave could yet
be granted but while imposing conditions
as to the time or mode of trial or payment
914 INDIAN LAW REPORTS ALLAHABAD SERIES
or furnishing security. Thus, even in such
cases of doubts or reservations, denial of
leave to defend is not the rule; but
appropriate conditions may be imposed
while granting the leave. It is only in the
case where the defendant is found to be
having no substantial defence and/or
raising no genuine triable issues coupled
with the Court's view that the defence is
frivolous or vexatious that the leave to
defend is to be refused and the plaintiff is
entitled to judgment forthwith. Of course,
in the case where any part of the amount
claimed by the plaintiff is admitted by the
defendant, leave to defend is not to be
granted unless the amount so admitted is
deposited by the defendant in the Court.

33.3. Therefore, while dealing
with an application seeking leave to defend,
it would not be a correct approach to
proceed as if denying the leave is the rule
or that the leave to defend is to be granted
only in exceptional cases or only in cases
where the defence would appear to be a
meritorious one. Even in the case of raising
of triable issues, with the defendant
indicating his having a fair or reasonable
defence, he is ordinarily entitled to
unconditional leave to defend unless there
be any strong reason to deny the leave. It
gets perforce reiterated that even if there
remains a reasonable doubt about the
probability of defence, sterner or higher
conditions as stated above could be
imposed while granting leave but, denying
the leave would be ordinarily countenanced
only in such cases where the defendant fails
to show any genuine triable issue and the
Court finds the defence to be frivolous or
vexatious."

13. Reading of aforesaid paragraphs
reveals that the Apex Court has held that
ordinarily the defendant should not be
denied opportunity to contest the case
unless it is demonstrated that no substantial
defence is raised or defence set up does not
raise genuine triable issues coupled with
the fact that the defence is frivolous or
vexatious, the Court may refuse the leave
to defend and the plaintiff is entitled to
judgment forthwith.

14. Further, the Apex Court in
paragraph
33.1
has
delineated
four
eventualities of cases which may arise in
such type of cases and has provided
guidelines which the Court should follow.
The Apex Court has provided that the trial
court should impose condition in granting
leave to the defendant in cases which fall in
the fourth eventuality.

15. In the instant case, it is submitted
by learned counsel for the revisionist that
the present case falls in the fourth
eventuality as categorised by the Apex
Court
in
paragraph
No.33.1
of
the
judgment
which
is
"In
the
fourth
eventuality, where the proposed defence
appears to be plausible but improbable,
heightened conditions may be imposed as
to the time or mode of trial as also of
payment into the Court or furnishing
security or both, which may extend to the
entire principal sum together with just and
requisite interest."

16. This Court analysed the facts of
the case in the light of fourth eventuality
delineated by the Apex Court in paragraph
33.1 of the judgement and finds that
respondent has set up a substantive issue
for grant of unconditional leave to contest
the suit and the case of respondent does not
fall in the category of fourth eventuality. It
is further relevant to note that the
averments have been made on affidavit by
the revisionist without placing any material
on record indicating that the payments
9 All. Smt. Prema Devi Vs. Devideen & Ors.
915
detailed in paragraph 4 of the affidavit have
been made by the revisionist to the
respondent.

17. Though it is true that the
respondent has also averred in his objection
with regard to payment made by him for
purchase of land without placing any
material on record, but this Court may note
that the revisionist has made assertion of
payment on affidavit without placing any
material on record to establish bona fide of
payment by him which has been denied by
the respondent in his objection. Both the
parties have failed to produce any material
on record in support of their claim.

18. In such view of the fact, this Court
finds that the defence set up by the respondent
in his objection is triable issue which entitles
the defendant to unconstitutional leave to
contest the suit as contemplated under Order
37 Rule 5 of C.P.C.

19. It would also be appropriate at this
stage to consider the first proviso to Order 37
Rule 3(5) of C.P.C. which mandates the Court
not to refuse the leave to defend unless it is
satisfied that the facts disclosed by the
defendant do not indicate that he has a
substantial defence to raise or that defence
intended to be put up by the defendant is
frivolous and fictitious. In the instant case,
the revisionist has failed to demonstrate that
the facts disclosed by the respondent in his
objection do not disclose that he has
substantial defence to raise. In such view of
the fact, this Court finds that the subordinate
Court has not committed any illegality or
jurisdictional error in granting unconditional
leave to the respondent.

20. In such view of the fact, the
revision is dismissed without any order as
to costs.
----------
(2023) 9 ILRA 915
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters U/A 227 No. 3002 of 2019 (Civil)

Smt. Prema Devi ...Petitioner
Versus
Devideen & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arvind Kumar Yadav, Sri Nikhil Kumar

Counsel for the Respondents:
Sri Girish Singh, Sri Ashish Kumar

Civil Law - Constitution of India,1950 -
Article
227
-
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Sections 12(3), 14 & 16(2) -
Indian Evidence Act, 1872 - Section 17 -
Deemed Vacancy and Revisional Order -
Petitioner challenged the revisional order dated
23.01.2019, which allowed Rent Revision No. 70
of 2011, setting aside vacancy and release
orders dated 10.03.2010 and 08.06.2011,
respectively, under U.P. Act No. 13 of 1972. The
vacancy order was based on the respondenttenant's admission in a written statement in Suit
No. 893 of 1993, claiming ownership and
residence in House No. 85/183. Petitioner
argued that the revisional court erred by not
addressing this admission and remanding the
matter
without
reversing
the
Regulatory
Authority's findings, citing Basant Singh and
Premlata @ Sunita. Respondents contended that
Section 12(3) requires a vacant alternative
accommodation, which was under dispute, and
raised issues of bonafide need under Section
16(2) and statutory tenancy under Section 14,
citing Gopal Singh. The court held that the
tenant's admission of permanent residence in
another property triggered deemed vacancy
under Section 12(3), and the tenant could not
approbate and reprobate, as per Basant Singh