S.N. Andley, J.
(1) This revision is directed anoints the order dated April 5, 1969 of the Subordinate Judge 1st Class. Delhi, by which he 'ranted to respondent No. 2 (original defendant No. 2) unconditional leave to defend suit No. 151 oi 1969 which had been filed by the petitioners oil the foot of three dishonoured cheques under Order 37 of the Code of Civil Procedure. Defendant No 1 in the suit was M/s. Arora Brothers of which G. D. Arora. defendant No. 2, was alleged to be the proprietor. The plaint in this suit was presented on February 6, 1969. The allegation in the plaint was that the petitioners had supplied certain goods to the respondents at New Delhi in respect of which three cheques had been given by the respondents which on being presented to the bankers were returned with the remarks 'refer to drawer'.
(2) On or about February 10. 1969, the petitioners filed an application under Order 39. rules I and 2 and section 151 of the Code of Civil Procedure referring to the suit and praying that the respondents be restrained by an injunction from transferring their shops and the furniture installed therein at Delhi and Meerut till the disposal of the suit. This application came up before the trial Court on February 20. 1969 when a reply was filed on behalf of the respondents denying the purchase of any goods and any liability of the respondents to the petitioners. The reply was accompanied by a short affidavit of G. D. Arora merely staling that he had not purchased any goods from the petitioners and that he had not issued the suit cheques in favor of the petitioners. On this date. notice of the suit was given to the respondents and they filed an application under rules 2 and '3 of Order 37 of the Code of Civil Procedure for leave to defend the suit. This application purported to be only on behalf of G. D. Arora who stated that the suit cheques were not signed by him nor had they been issued by him. Hp also denied having purchased any goods from the petitioners. This application was filed within the prescribed period of limitation on March 1. 1969, and came up before the Court on March 6. 1969. No affidavit was filed ill support of this application. On March 15. 1969. the petitioners filed their reply to the respondents' application for leave to define and took a preliminary objection that no affidavit disclosing any such facts as to entitle the respondents to defend the suit had been filed and the application was incompetent in law and not sustainable.
(3) In spite of this preliminary obiection, no affidavit in support of the application for leave to defend the suit was filed by the respondents.
(4) When the question as to whether leave to defend should be granted or not was argued, it was urged on behalf of the petitioners that the application for leave to defend was not supported by any affidavit as required by rule 3 of Order 37 of the Code of Civil Procedure and in the absence of such affidavit, no leave to defend the suit should be granted.
(5) The trial Court was of the view that the law did not provide that affidavits in support of the application for leave to defend shoved be filed Along with the application and the trial Court took into consideration the affidavit which had been filed by the respondents in support of their reply to the petitioners application for injunction and. doing so. the trial Court came to the conclusion that the defense was not mala. fide and granted unconditional leave to defend to G.D. Arora, respondent No. 2.
(6) A special and summary procedure has been prescribed by Order 37 of the Code of Civil Procedure with respect to suits on the basis of negotiable instruments. Sub-rule (2) of rule 2 of Order 37 provides that the defendant shall not appear or defend the suit unless he obtains leave from a Judge so to appear and defend and. in default of his obtaining such leave of of his appearance and defense in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree as provided by sub-rule (2). It shows that the provisions arc stringent and in the absence of ' the grant of leave, the ordinary procedure applicable to ordinary suits is not applicable and the plaintiff is entitled to a decree as the a allegation in the plaint are deemed to be admitted.
(7) Rule 3 of Order 37 provides for the grant of leave to defend the suit on merits upon the application by the defendant upon affidavits which disclose such facts as would make it incumbent on the plaintiff to prove consideration, or such other facts as the Court may deem sufficient to support the application. Rule 3 requires two things-(1) an application by the defendant and (2) a disclosure upon affidavits. of such facts as require proof of consideration or as are considered by the Court to be sufficient to support the application. A mere application for leave to defend is not enough. The facts mentioned in the application for leave to defend have to be established upon affidavit which should normally accompany the application but which may be filed even after the application has been filed. Rule 3 uses the word 'affidavits' i.e. in the plural. The affidavits contemplated by rule 3 are not merely affidavits which may be filed by the defendant applying for leave but also affidavits which may be filed by the plaintiff to contest the correctness of the facts averred by the defendant. Rule 3 permits proof on affidavits because until leave is granted, the proceedings arc summary and also because affidavits arc a recognised method of proving or disproving facts vide Order 19 of the Code of Civil Procedure. If the facts pleaded in the application for leave are not supported by any affidavit, they cannot be said to have been proved even in such summary proceedings. Proof is required by affidavit also because it should not be open to a defendant to plead facts without stating them on oath. It is, thereforee, necessary that the facts pleaded in the application for leave must be supported by an affidavit filed either with such application or subsequently. In my view, an affidavit which has been filed by the defendant earlier in respect of some other application. even though it be in the same suit. cannot be taken to be an affidavit in support of the application for leave under rule 3. The trial Court. thereforee, clearly committed an irregularity in relying upon the affidavit filed by the respondents earlier in reply to the petitioners' application for injunction and the order granting unconditional leave to respondent No.2 has. thereforee, to be set aside.
(8) It was not disputed before me that between the admission of this revision and its hearing before me, both the parties have led their evidence on the merits of the controversy in the suit and that the suit is now listed for arguments on April 25, 1972. Counsel for the respondents, thereforee, contended that even if the trial Court committed an irregularity. T should not interfere at this stage. This contention cannot be accepted. Order 37. as stated earlier, provides for summary disposal of suits based upon negotiable instruments. That procedure cannot be set at naught or defected merely because as a result of the irregularity committed by the court the parties have. as in this case. gone to trial on the merits. Tn a suit upon a negotiable instrument which has been Filed under Order 37 the right to the defendant to defend the suit is conditional upon the grant of leave to defend and he cannot take advantage of the fact that the suit has gone to trial that the parties have adduced their entire evidence to get over the condition precedent to his right to defend the suit.
(9) The proper procedure for the trial Court in this case would have been to call upon the defendants to file affidavit or affidavits in support of the facts alleged in their application for leave to defend the suit and then to give an opportunity to the plaintiffs to file counter affidavits thereto.
(10) In the result. I accept the revision and set aside the order of the trial Court granting unconditional leave to respondent No.2 to defend the suit. The trial Court will now consider the question as to whether leave should be granted or not and on what terms upon such affidavits that may be filed by the parties before it for which an opportunity will be granted to the parties. The trial Court will not take into consideration any affidavit that may have been filed by the respondents in this suit before the filing of the application for leave to defend. The petitioners will have their costs in this Court which are assessed at Rs. 50.00.
(11) The parties are directed to appear before the trial Court on April 14 1972.