JALDU ANANTA RAGHURAMA ARYA Vs. JALDU MANIKYALA RAO

JUDGEMENT

(1.) THIS petition is to revise the order of the Subordinate Judge, Masulipatam, granting leave to the Defendant under Order 37 Rule 3 Code of Civil Procedure on condition of the Petitioner (Defendant) furnishing security for the sum claimed on the promissory note. The suit was filed against the Petitioner for recovering a sum of Rs.12,188 -9 -6 due on a promissory note executed by the Defendant on 20 -6 -1955.

(2.) IN this revision petition, that order is assailed by Mr. Suryanarayana. It is stated that the Judge was not right in observing that the defence was not that the document was not supported by consideration, whereas his plea was that the was want of consideration. This contentious has to be rejected. Assuming that sphere an any substance in the defence that no wear was paid for the promissory note, it down not follow that there is no consideration fortify document. Even on his own showing, the promissory note was supported fully by consideration

(3.) THE passage is only an authority for .the proposition that . in deciding whether leave should be granted or not, the only test is whether there is a real issue and not that in addition to the defence raising a triable issue it should be a bona fide one posh. This judgment was followed by another Bench of the 'Madras High Court in' Mthukaruppan v. Habib Mohammed, : AIR 1955 Mad 43 (E). In the latter case, the Learned Judges on basis of LB (1950) Mad 251 : : AIR 1950 Mad 226) (F) stated that if the Court was satisfied that -the alleged defence was a sham and a bogus one, leave to defend should be refused express my respect full accord with the doctrine of these two cases The principle deduced is that in order to obtain leave to defend, the defence raised should appear to be a sham or a bogus one, i.e., it should be a real one. It is surely competent for the Court to direct the Defendant to furnish security for the amount claimed as a condition for granting leave.