An affidavit in support of an application for leave to defend a suit under Order 37 of the Code of Civil Procedure is necessary.

( 1 ) THIS revision is directed aoninst the order dated April 5, 1969 of the Subordinate Judge 1st Class. Delhi, by which he "ranted to resnondent 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 favour 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 defene 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 petiotioners 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 alongwith 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 defence 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 defence in pursuance thereof, the allegations in the plaint shall be deemed to be admi