Manipur High Court
Smt. Thoudam (N) Takhellambam (O) ... vs Shri Nameirakpam Dhiren Singh Of ... on 12 January, 2024
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
C.R.P. NO. 3 OF 2023
Smt. Thoudam (N) Takhellambam (O) Anoubi Devi,
aged about 63 years, W/o Shri Takhellambam Phoni
Singh of Kwakeithel Ningthemkol, P.O. Imphal, P.S.
Singjamei, Imphal West District, Manipur.
.... Petitioner
- Versus -
1. Shri Nameirakpam Dhiren Singh of Kwakeithel
Thounaojam Leikai, P.O. Imphal, P.S. Lamphel,
Imphal West District, Manipur.
2. Smt. Nameirakpam (O) Chaoba Devi @ Bidya, W/o
Shri Nameirakpam Dhiren Singh of Kwakeithel
Thounaojam Leikai, P.O. Imphal, P.S. Lamphel,
Imphal West District, Manipur.
.... Respondents
BEFORE
HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
For the petitioner : Mr. Albert Keisham, Advocate
For the respondents : Ex-parte.
Date of hearing : 08.12.2023
Date of order : 12.01.2024
J U D G E M E N T & O R D E R
(CAV)
[1] Heard Mr. Albert Keisham, learned counsel appearing for
the petitioner and respondents are proceeded as ex-parte vide order
dated 27.02.2023.
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[2] The brief facts of the case in filing the present petition are
as follows:
"(i) The present Civil Revision Petition is filed by the petitioner
against the order dated 09-12-2022 passed by the Learned Civil
Judge (Senior Division), Imphal West in Judicial Misc. Case No. 46 of
2021 (Ref: M.S. No. 66 of 2020) whereby the leave to defend filed
by the Respondents was allowed by the Ld. Court.
(ii) The facts leading to the filing of the present civil Revision
Petition succinctly stated that the present petitioner instituted the
original money suit being M. S. No. 66 of 2020 before the Ld. Civil
Judge (Senior Division), Imphal West praying for;
(a) a decree for recovery of Rs. 5,00000/- (Rupees dive
lakhs) only;
(b) a decree for the cost of litigation;
(c) any other relief or reliefs which the Hon'ble Court
deems fit to be awarded, be awarded in the nature of
the suit in the ends of justice.
(iii) Thereafter, the Respondents file an application under
Order XXXVII Rule 3(5) read with section 151 of C.P.C. 1908 before the
Civil Judge (Senior Division) Imphal West praying for granting leave to
defend and the same is registered as Judicial Misc. Case No. 46 of
2021.
(iv) The Ld. Civil Judge (Senior Division) Imphal West vide its
order dated 09-12-2022 passed in Judicial Misc. Case No. 46 of 2021
allowed the leave to defend filed by the Respondent.
(v) The petitioner had given a legal notice to both the
Respondents and in reply to it the Respondents had accepted the debt
of Rs. 5,00,000/- (Rupees five lakhs) only and further stated that she
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had already paid Rs. 1,00,000/- (Rupees one lakh) only and Rs.
4,00,000/- (Rupees four lakhs) only are indebted.
(vi) The Respondents on 10-06-2018 undertake to repay the
said amount of Rs. 5,00,000/- (Rupees five lakhs) only to the petitioner
by executing a written undertaking in Manipuri language.
(vii) Inspite of existence of all these documents the Ld. Civil
Court erred in allowing the J.M. Case No. 46 of 2021 (Leave to defend)
which amounts to gross injustice.
(ix) Being aggrieved by the order dated 09.12.2022 passed in
Judicial Misc. Case No. 46 of 2021 the petitioner begs to prefer this Civil
Revision Petition on the grounds herein below:-
(i) The Ld. Civil Judge (Sr. Divn.), Impha; West failed to
appreciate the existence of the reply legal notice sent
by the counsel of the Respondent wherein it is accepted
that the Appellant have hander over a sum of Rs.
5,00,000/- (Rupees five lakhs) only to the Respondents
and further accepted that the Respondents are yet to
pay an amount of Rs. 4,00,000/- (Rupees four lakhs)
only to the Appellant as the Respondents have already
gave an amount of Rs. 1,00,000/- (Rupees one lakhs)
only during the month of December, 2019.
(ii) The Ld. Civil Judge (Sr. Divn.), Imphal West failed to
appreciated the fact that the Respondents have put
their signature in the said undertaking dated
10.06.2018 executed in the Non-Judicial Stamp paper
which they have admitted in their reply legal notice.
In view of the facts and circumstances as stated above, the petitioner
prayed for;
"(i) to admit this Revision;
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(ii) to call for the records of the case;
(iii) to set aside the impugned order dated 09-12-2022
passed by the Hon'ble Civil Judge (Sr. Divn.), Imphal
West in Judicial Misc. Case No. 46 of 2021;
(iv) to pass any order or orders as your Honour Lordship
may deem fit and proper in the facts and circumstances
of the case."
[3] On perusal of the Judgment and order dated 09.12.2022,
it is seen that the Ld. Civil Judge (Sr. Divn.), Imphal West minutely
discussed about the facts put up by both parties and further on
careful perusal of the aforementioned impugned order, it is found
that the present respondent in the present Civil Revision Petition
(petitioner in Judl. Misc. Case No. 46 of 2021) denied the factum of
execution of the promissory note and receiving of any consideration
of the promissory note, while the petitioner and the respondent are
pleaded to be involved in business together, the present respondent
pleaded that the promissory note was obtained by way of fraud i.e
the promissory note was a fraud document. Further, the respondents
have averred that the signature in the promissory note dated
10.06.2018 are not theirs and that they have never executed the
promissory note.
[4] The Hon'ble Supreme Court observed in the para 16 of
the [(2017) 1 Supreme Court Cases 568 - IDBI Trusteeship
Services Limited Vs. Hubtown Limited] that:-
"(16) It is thus clear that Order 37 has suffered a
change in 1976, and that change has made a difference in the
law laid down. First and foremost, it is important to remember
that Milkhiram case6 is a direct authority on the amended Order
37 provision, as the amended provision in Order 37 Rule 3 is
the same as the Bombay amendment which this Court was
considering in the aforesaid judgment. We must hasten to add
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that the two provisos to sub-rule (3) were not, however, there
in the Bombay amendment. These are new, and the effect to
be given to them is something that we will have to decide. The
position in law now is that the trial Judge is vested with a
discretion which has to result in justice being done on the facts
of each case. But Justice, like Equality, another cardinal
constitutional value, on the one hand, and arbitrariness on the
other, are sworn enemies. The discretion that Judge exercises
under Order 37 to refuse leave to defend or to grant
conditional or unconditional leave to defend is a discretion akin
to Joseph's multi-coloured coat - a large number of baffling
alternatives present themselves. The life of the law not being
logic but the experience of the trial Judge, is what comes to
the rescue in these cases; but at the same time informed by
guidelines or principles that we propose to lay down to obviate
exercise of judicial discretion in an arbitrary manner. At one
end of the spectrum is unconditional leave to defend, granted
in all cases which present a substantial defence. At the other
end of the spectrum are frivolous or vexatious defences,
leading to refusal of leave to defend. In between these two
extremes are various kinds of defences raised which yield
conditional leave to defend in most cases. It is these defences
that have to be guided by broad principles which are ultimately
applied by the trial Judge so that justice is done on the facts of
each given case.
(17) Accordingly, the principles stated in para 8 of
Mechelec case4 will now stand superseded, given the
amendment of Order 37 Rule 3 and the binding decision of four
Judges in Milkhiram case6, as follows:
(17.1) If the defendant satisfies the court that he has a
substantial defence, that is, a defence that is likely to succeed,
the plaintiff is not entitled to leave to sign judgment, and the
defendant is entitled to unconditional leave to defend the suit."
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[5] And again in para 15 of [(2010) 9 Supreme Court
Cases 385 - Jai Sing and others Vs. Municipal Corporation of
Delhi and Another] :-
"15. We have anxiously considered the submissions
of the learned counsel. Before we consider the factual and
legal issues involved herein, we may notice certain well-
recognised principles governing the exercise of jurisdiction by
the High Court under Article 227 of the Constitution of India.
Undoubtedly the High Court, under this article, has the
jurisdiction to ensure that all subordinate courts as well as
statutory or quasi-judicial tribunals, exercise the powers vested
in them, within the bounds of their authority. The High Court
has the power and the jurisdiction to ensure that they act in
accordance with the well-established principles of law. The
High Court is vested with the powers of superintendence and
/or judicial revision, even in matters where no revision or
appeal lies to the High Court. The jurisdiction under this article
is, in some ways, wider than the power and jurisdiction under
Article 226 of the Constitution of India. It is, however, well to
remember the well-known adage that greater the power,
greater the care and caution in exercise thereof. The High
Court is, therefore, expected to exercise such wide powers with
great care, caution and circumspection. The exercise of
jurisdiction must be within the well-recognised constraints. It
can not be exercised like a "bull in a china shop", to correct all
errors of judgment of a court, or tribunal, acting within the
limits of its jurisdiction. This correctional jurisdiction can be
exercised in cases where orders have been passed in grave
dereliction of duty or in flagrant abuse of fundamental
principles of law or justice".
[6] In view of the facts and circumstances herein above
discussed and on the observations made in the above 2(two) Hon'ble
Supreme Court cases, it is decided that there is no room for
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interference of the order passed by the Ld. Civil Judge (Sr. Divn.),
Imphal West in Judicial Misc. Case No. 46 of 2021 as the defendants
satisfies the court that they have a substantial defence, that is, a
defence that is likely to succeed and the defendant is entitled to
unconditional leave to defend the suit.
[7] Accordingly, the present Civil Revision Petition No. 3 of
2023 is dismissed and disposed of without costs. However, the
petitioner is given liberty to file a fresh application on other grounds, if
desired.
[8] Send an extract copy of this order to the Court of Civil
Judge (Sr. Divn.), Imphal West.
JUDGE
FR/NFR
Lucy
KHOIRO Digitally signed
by KHOIROM
M BIPINCHANDRA
BIPINCH SINGH
Date:
ANDRA 2024.01.12
16:14:56
SINGH +05'30'
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