A defendant in a summary suit based on a non-negotiable instrument is not required to prove want of consideration unless the plaintiff establishes a presumption of consideration.

Headnote:
EX PARTE DECREE - SETTING ASIDE - SUFFICIENT CAUSE - SUMMARY SUIT - CHARACTER NOT LOST BY GRANT OF UNCONDITIONAL LEAVE TO DEFEND - ERRONEOUS VIEW OF LAW - DECREE QUASHED AND SUIT REMANDED.
Fact of the Case:

Defendant's ex parte decree was passed due to his absence on the hearing date. He filed a notice of motion to set aside the decree, claiming sufficient cause for his absence. The trial court dismissed the notice of motion, holding that the defendant had not shown sufficient cause and that the suit retained its summary character despite the grant of unconditional leave to defend.
Finding of the Court:

The High Court allowed the defendant's appeal from the order dismissing the notice of motion, holding that the trial court had erred in its approach and that the defendant had made out a case of sufficient cause for his absence. The High Court also held that the trial court's view that the suit retained its summary character despite the grant of unconditional leave to defend was erroneous.
Issues: 1. Whether the defendant had shown sufficient cause for his absence on the hearing date. 2. Whether the suit retained its summary character despite the grant of unconditional leave to defend.
Ratio Decidendi: 1. The High Court held that the defendant had shown sufficient cause for his absence on the hearing date, considering the facts that his advocate had been elevated to the bench and had handed over the papers to his junior, who had given notice of the hearing date to the plaintiff's attorneys, but the defendant was not informed about the progress of the suit. 2. The High Court held that the trial court's view that the suit retained its summary character despite the grant of unconditional leave to defend was erroneous, as the onus of proving want of consideration in a summary suit based on a negotiable instrument shifts to the defendant only because of the presumption of consideration arising from the instrument, which is not the case in a summary suit based on a non-negotiable instrument.
Final Decision: The High Court allowed the defendant's appeal from the order dismissing the notice of motion, quashed and set aside the ex parte decree, and remanded the suit to the trial court for disposal according to law by a different judge.

JUDGMENT - SHARAD MANOHAR, J.:---Both the appeals arise out of the same suit. A.O. No. 416/1982, however, arises out of the order passed by the trial Court refusing to set aside the ex parte decree passed against the present appellant, who was the defendant in the suit, while First Appeal No. 710/1982 is filed by him, by way of abundant caution, against the ex parte decree itself challenging the same on merits.

As will be presently pointed out, the appeal from order has got to be allowed because the learned Judge has dismissed the defendant's notice of motion for setting aside the ex parte decree without really applying his mind to the facts and equities of the case. Moreover, he has confused and jumbled between the application for setting aside the ex parte decree and the merits of the defence. I am stating here that since I am allowing the appeal from order and setting aside the ex parte decree passed against the defendant, it is unnecessary for me to admit First Appeal No. 710/82 and to appreciate the reasoning of the learned Judge while passing the ex parte decree. But I make it clear that if it was necessary, I would have not hesitated to admit First Appeal No. 710/1982 because I am prima facie satisfied that the decree is susceptiable to challenge even on merits.

2. It is unnecessary to state the facts of the case which are already stated in the judgment of the learned trial Judge at length. It is enough here to state that the suit out of which the present appeal arises, namely, Summary Suit No. 2166/62 was filed by the respondent-plaintiff against the defendant for recovery of a sum of Rs. 10,299/- alleging that the two sums, namely Rs. 8,000/- and Rs. 1,000/- were lent and advanced by the plaintiff to the defendant on 8-3-1961 as a friendly loan. Contention was that two debit vouchers, for having received the said amounts, were signed by the defendant. The plaintiff's contention further was that the defendant had agreed to pay interest at the rate of 1 per cent per month on the said amount of Rs. 9,000/-. It is because of the said vouchers purporting to have been signed by the defendant for Rs. 8,000/- and Rs. 1,000/- respectively that the suit was filed by the plaintiff as a summary suit for recovery of the said amount with interest.

After the suit was filed as a summary suit, the defendant file this return and hence summons for judgment was taken out by the plaintiff. The Court was satisfied that the defence set up by the defendant did disclose a genuine arguable defence for the defendant. Hence, the Court gave an un-conditional leave to the defendant to defend the suit. After this order, an order was passed by the Court transferring the suit filed as the summary suit to the list of long causes. It is on this account that the suit remained marking time and waiting in the queue of long-cause suits for a full period of 20 years in the City Civil Court.

But soon after the defendant received un-conditional leave to defend the suit, the learned Advocate appearing for the defendant, Shri T.R. Desai was elevated to the bench of the City Civil Court. It does appear that the defendant had information about this fact. It is, however, clear that the defendant did not choose to appoint any other person in place of Shri T.R. Desai at any time. By the time the suit reached hearing, Shri T.R. Desai had already ceased to be a Judge and has started practising in the Court once again. However, it is the case of the defendant that Shri T.R Desai had handed over the papers in relation to the suit to his Junior Shri V.B. Mehta. As will be presently pointed, this does appear to be the position. The defendant, therefore, felt secured that the suit filed against him by the plaintiff would be looked after by said Shri V.B. Mehta.

The suit appeared on the Board for hearing on 25-2-1982 and on account of want of time, it was adjourned firstly to 8th March and thereafter to 20th March and from 20th March to 30th March, 1982. On 30th March it rea

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