B.RAJENDRAN Vs. K.MURUGESAN

JUDGEMENT

(1.) The appellant herein is the defendant in the suit filed in O.S. No. 480 of 2008 under Order 37 Rule 3 of C.P.C. on the file of V Asst. City Civil Court at Chennai by the respondent/plaintiff herein for recovery of money on pronote.

(2.) The filing of suit on pronote claimed under summary suit proceedings is admitted by both parties and for the sake of convenience, the parties are referred as per the ranking in the suit.

(3.) In that suit, the defendant has filed an application under Order 37 Rule 3 of C.P.C. seeking to grant unconditional leave to defend the case, submitting that from one Ponnusamy, a loan amount was borrowed by the by the plaintiff through the defendant. Subsequently, the amount was discharged to the said Ponnusamy, but as a mediator, the plaintiff, who retained the pronote and other cheque leaves, and he has manipulated the same and filed a suit. Hence, he filed an application seeking to grant unconditional leave to defend the case. But, the learned trial judge dismissed the application concluding that the defence sought to be raised cannot be said to be substantial, as a result, the leave to defend was refused and the suit was decreed as prayed for. Aggrieved over that, the defendant has filed an appeal before the appellate forum in A.S. No. 55 of 2011 along with C.M.P. No. 1288 of 2011 challenging the order passed by the trial judge. On considering the both sides submissions, the learned appellate judge has held that from the beginning, the defendant seeking permission to adduce evidence in the summary suit proceedings and as per the defence sought to be raised by the defendant, it is found that none of defence raised by him is tenable in law and the defendant also failed to show that he is having documentary evidence to prove his case, and the claim has not been filed by way of affidavit in the trial court. Accordingly, the appeal was dismissed confirming the judgment passed by the trial court. Aggrieved over that, the appellant has filed the present Second Appeal framing the following substantial question of law:-