Law:

Section:

(a) Civil Procedure Code (V of 1908)--- ---O. XXXVII, Rr. 2 & 3---Suit for recovery of money on the basis of cheque---Application for leave to appear and defend the suit---Scope---Facts supported by affidavit---Substantial question of fact --------- Plausible defence---Scope---Defendant filed application for leave to appear and defend the suit which was dismissed and suit was decreed---Contention of defendant was that plaintiff had committed theft of his cheque---Validity---Defendant moved application for leave to appear and defend the suit within time---Court could rarely refuse leave to defend application where defendant had not failed to disclose any defence --------- Real question to be determined would be whether leave should be conditional or unconditional---Where defence had raised and disclosed a triable issue or a plausible defence or a prima facie case was made out then leave should be granted as a rule---Court should neither go into the merits of the case to determine if defence was good nor it should go into the truth or falsity of the defence---If plausibility of defence so raised appeared to be determinative then court must exercise its jurisdiction in favour of defendant while providing him opportunity to defend the suit---If court while deciding the application for leave to appear and defend the suit had reached to the conclusion that apparently defence was not bonafide but same required recording of evidence then leave could be granted by imposing equitable condition for due performance of decree---Such condition should not be harsh, unjust and oppressive---Defence raised by the defendant in the present case was not illusory---Said defence required recording of evidence for its proof or disproof which could not be determined without proper inquiry---Application for leave to defend was supported by affidavit which was not controverted by filing counter affidavit---Any person acquainted with facts might make a declaration of the same in writing and sworn on oath by an affidavit---Any application supported by an affidavit if not controverted by counter affidavit alongwith written reply should be taken as correct statement of fact---Defendant…

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