1. By this petition, the petitioner has assailed order dated 28th November, 2008 passed by the trial court whereby the trial court dismissed the application of the petitioner for leave to defend in default and decreed the suit of the plaintiff along with cost and pendentilite interest @ 12 per cent per annum.

2. It is submitted by counsel for the petitioner that even if the petitioner had not appeared on the date fixed for arguments, leave to defend could not have been dismissed by the trial court in default and the trial court was obliged to consider the defence raised by the petitioner and pass a speaking order whether leave to defend was permissible on merits or not and the suit of the plaintiff could not have been decreed without going into the merits of the case of the plaintiff.

3. Learned counsel for the respondent on the other hand supported the trial court order.

4. Under Order 37 Rule 3 sub-Rule 5 CPC, the defendant is obliged to disclose to the court by way of an affidavit such facts as may be deemed to be sufficient to entitle him leave to defend and if the court considers that the defendant had disclosed such facts which shows that the defendant had substan