KISHAN SINGH Vs. MOHD SHAFI

JUDGEMENT

(1.) IN this suit which is under O. 37 of the Civil P. C. there are three defendants : Mohd. Shafi, Triloki Nath and Hirday Nath. The defendants, Hirday Nath and Triloki Nath applied on 9 -9 -63 for leave to defend the suit. This application is supported by an affidavit. The first defendant, Mohd. Shafi presented a similar application supported by an affidavit on 19 -9 -63. Along with this application he put in another application for extension of time. The defendant Mohd. Shafi was served on 16 -8 -63, Hirday Nath on 13 -8 -63 and Triloki Nath defendant was served on 10 -8 -63. The grounds taken in the applications for defending the suit are numerous. It is stated that the pronote in question is without consideration, that there has been no proper presentation of the pronote, that there has been no contract of paying interest and that there is no sum outstanding against the defendants, so on and so forth.

(2.) I have heard the arguments of the learned counsels with respect to these applications for grant of leave to defend the suit The guiding principle for either granting or refusing leave to defend the suit under O. 37 of the Civil P. C. is that the affidavit which accompanies a petition for leavely to defend must disclose a defence, that is a triable issue or a plea which is at least plausible, no matter whether the defence is legal or equitable, even though it may not ultimately turn to be a good defence. In this case there are a number of points raised which can be the subject matter of different issues between the parties; therefore leave to defend the suit has to be granted.

(3.) THERE is a difficulty in the case of Mohd. Shafi who has not applied for leave to defend the suit within the statutory period of thirty days from the date of service. Mr. Bhan contends that in his case leave should not be granted and that his application should be refused without a final order this way or that being passed in the suit. I have considered the arguments advanced by both the counsels on this point. There is a difficulty in accepting the arguments advanced by Mr. Bhan. The pronote is jointly executed by all the three defendants and the defence is again a common one. If I refuse permission to Mohd. Shafi to defend the suit, then under the provisions of O. 37 r. 2 of the Civil P. C. I have to accept the allegations in the plaint as admitted and the plaintiff shall be entitled to a decree for the principal sum due and interest and costs and future interest. It would be a contradiction in terms if after leave has been granted to two other defendant to contest the suit and ultimately for the sake of argument be it said at least, that the suit of the plaintiff does not succeed, it shall stand decreed against the third defendant on the same material on record.