PALANIAPPA CHETTIAR Vs. S A CHIDAMBARAM CHETTIAR

JUDGEMENT

(1.) THIS petition is filed by the defendant in the suit whose application for leave to defend the suit whose application for leave to defend the suit on a promissory note was disallowed. The respondent laid the suit on the basis of a promissory note for a sum of Rs. 4200 executed by the defendant-petitioner on 23-11-1962 in his favour. When notice was served on the defendant, he filed an application under O. XXXVII Rule 3 praying for leave to defend. He admitted that he executed the promissory note, but contended that the amount represented the loss that the had incurred in gambling and therefore the promissory note was not enforceable. The trial court holding that the plea put forward by the petitioner would not make it incumbent on the plaintiff-respondent to prove consideration for the promissory note held that the petitioner was not entitled for leave to defend. The trial court also held after a discussion of the available materials on record that the defendant had not made out prima facie that his case was bona fide. On the two grounds above stated, the trial court dismissed the application for leave to defend.

(2.) THE learned counsel for the petitioner submitted that the lower court acted illegally and with material irregularity in the exercise of its jurisdiction in refusing leave to defend the suit. He submitted that the lower court committed some mistakes in its judgement regarding the dates n contents of the affidavit, but it is unnecessary to go into the facts, as this petition can be disposed of on a pure question of law.

(3.) IT is contended by the learned counsel for the petitioner that if the affidavit filed on behalf of the petitioner-defendant in an application for leave to defend discloses a triable issue, then it is the duty of the trial court to grant leave to defend. Order XXXVII Rule 3 is as follows :