Law:

Section:

Negotiable Instruments Act (XXVI of 1881)--- ----S. 4---Civil Procedure Code (V of 1908), O.XXXVII---Suit for recovery of amount on the basis of "two distinct pro-notes"---Scope---"Pronote"---Essentials---Trial Court declined grant of leave to defend because defendant had failed to file affidavit along with his petition---Trial Court decreed the original amount only and not the profit as mentioned in the pro-notes---Powers of the Court to grant leave to defend---Scope---Defendant contended that he could not attach the affidavit as he was in jail at that time---Validity---Perusal of O.XXXVII, R.3, C.P.C. showed that it consisted of two distinct parts: First, required the filing of application for leave to appear and defend the suit on affidavit, whereas the second part gave power to the Court to grant leave to appear and defend the suit on such other facts as the Court deemed sufficient to support the application---Word 'or' after comma (,) occurring after the word "consideration" in O.XXXVII, R.3, C.P.C. indicated the intention of Legislature that word 'or' was used in disjunctive sense---Legislation could not be alleged to have a careless attitude in use of word 'or' therein---Trial Court, in the present case, had failed to interpret the provision of O.XXXVII, R. 3(1), C.P.C. and had non-suited the defendant only on account of non-submission of the affidavit in support of the petition for leave to appear and defend, without determining other facts, which were placed before Trial Court explaining the reasons for non-submission of the affidavit, thus, a jurisdiction clearly vested in the Trial Court in view of the second part of O.XXXVII, R.3, C.P.C. had not been exercised---Perusal of both the pronotes exhibited by the plaintiffs created impression that the same were not "negotiable instruments" and could not be termed "pronotes" for the reason that the stated transaction through such documents was shown as a loan which was settled to be returnable with a certain amount of profit---Section 4 of the Negotiable Instruments Act, 1881 stipulated essentials of "promissory note" as an "unconditional undertaking to pay"---Pronotes, in the present case, had been…

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