The court should exercise judicial discretion in determining whether to grant leave to the defendant to appear and defend a suit under Order 37, Rule 3, Code of Civil Procedure, and should not pre-judge the issue or express an opinion on the merits.

( 1 ) THIS is a defendant s revision directed against the order of Shri Amarjit Chopra, Commercial Subordinate Judge 1st Class, Delhi, dated 21st March, 1966 directing the defendant to deposit the suit amount together with tentative costs of the suit assessed at Rs. 398. 00 on or before 29th March, 1966 failing which the defendant s request to appear and defend the suit was to be deemed to have been declined.

( 2 ) THE suit in the Court below was instituted early in December, 1965 by Shri Bishambar Nath Chopra against Shri Niresh Chandra Mittal for the recovery of a sum of Rs. 1. 359. 50 Paise under Order 37, Code of Civil Procedure. According to the plaint, the defendant had executed a promissory note for Rs. 950. 00 on 15th January, 1963 payable to the plaintiff with interest at 15 per cent per annum and the defendant having not paid the said amount or any part thereof in spite of repeated demands, the plaintiff claimed Rs. 9501. 00 as principal and Rs. 409. 50 Paise as interest up to date at 15 per cent per annum.

( 3 ) THE defendant applied under Order 37, Rule 3, of the Code for leave to appear and defend the suit. The grounds for such leave were pleaded to be that the promissory note was without consideration. According to the facts pleaded in this application, the plaintiff and the defendant were partners in a firm Messrs Sight Sound Electronics which had been carrying on business at F. 3/19 Krishen Nagar, Delhi-31. This firm was dissolved as the plaintiff did not pay the share of partnership. The brother of the plaintiff Shri Ram Nath Chopra was an apprentice in this firm and it was agreed between the plaintiff and the defendant that nobody would start a similar business. The brother of the plaintiff in spite of this promise started a similar business at B-38, Rajinder Nagar, New Delhi. After the dissolution of this firm, the defendant requested the plaintiff to stop his younger brother from carrying on this business add the defendant agreed to pay compensation for the same. The plaintiff agreed to this suggestion and for this purpose, the plaintiff get three pronotes executed which was dope on 1st January, 1963 but the promissory notes were made to bear different dates. One pronote dated 15th January, 1963 was got written in favour of the plaintiff and two pronotes dated 1st January, 1963 and 16th January, 1963 were got written in favour of Chander Kanta, sister of the plaintiff s wife. It was agreed by the plaintiff that he would get the business of his brother discontinued within one month and if he failed to do so, the pronotes would be inefftctive and no action would be taken thereon. The plaintiff gave a letter to this effect to the defendant on the same date, namely, 1st Janary, 1963. The plaintiff having not stopped the business of his younger brother within one month, he committed a breach of the agreement. It was also pleaded that though the plaintiff alleged cash payment, according to the promissory note, no cash payment was made at the time of its execution. This application was duly supported by an affidavit sworn by the defendant.

( 4 ) THE plaintiff filed a reply to this application. In this reply, the plea of absence of consideration was denied and it was averred that the dfendant had executed the promissory note after receipt of the money for which a receipt had also been executed on the same date. The assertions of the partnership between the plaintiff and the defendant was not denied, but it was pleaded that this business had been dissolved only after two months. The plea that the plaintiff s brother was an apprentice in this business was controverted. Similarly, it was denied that there was any agreement between the plaintiff and the defendant that the parties would not start a similar business. As a matter of fact, according to the plaintiff, the defendant is doing the same business wherein as the plaintiff is merely an employee in a private firm. It was denied for want of knowledge that the bro