( 1 ) THIS application is directed against the order of the City Civil Court, dated 15-2-1990 whereby for granting leave to defend summary suit the learned single judge has imposed condition of payment of Rs. 8,000/ -. The petition-defendant is aggrieved by said order and has come to this Court under Section 115 Civil procedure Code.

( 2 ) IT appears that the respondent- plaintiff instituted Summary Suit No. 1406/89 to recover amount of Rs. 38,429/- with interest at the rate of 9% p. a. from the date of suit. It was claimed in such suit that various loans were advanced to the defendant. The defendant was in need of Rs. 7,500/- when he wanted to get possession of his house and said amount was advanced to the defendant. It is further alleged that the defendant was in need of money for the purpose of opening a church as that contract was given to the defendant. For that work amount of Rs. 7,000/- was paid to the defendant. It was further stated that for contract to processing division of Calico Mill further advance of Rs. 7,084. 40 ps. was made to the defendant. The plaintiff has by notice called upon the defendant to pay the amount. The defendant has even executed promissory note and has failed to pay up the amount.

( 3 ) THE defendant appeared in the suit and has filed his application for leave to defend at Exh. 38. In such application for leave to defend he inter alia contended that no promissory note is executed by him and that the signature below the promissory note is a got up and concocted one. He has further stated that there were no transaction between him and the plaintiff and that the suit was totally false and liable to be dismissed.

( 4 ) ON the aforesaid pleadings and documentary evidence produced before the court the trial Court has granted leave to defend on defendant depositing amount of Rs. 8,000/ -.

( 5 ) THAT this matter was initially notified before this Court on March 19, 1994, the day on which all the judges of the High court were assigned specific matters as single judges. When the matter reached hearing it was mentioned by the clerk of the Advocate-Mr. Mayur Shah that he would come soon. Mr. M. H. Shaikh, learned Advocate for respondent was present and he has heard. The court waited for the whole day but Mr. Mayur shah did not turn up. The matter was thereafter treated as part-heard and was ordered to be renotified for further hearing on October 3, 1994.

( 6 ) ON such renotified date none appeared for the petitioner. On going through the memo of CRA it is found that the main ground agitated by the petitioner is once the signature below the promissory note is disputed unconditional leave to defend should be granted, as a matter of course. A faint attempt is made to raise number of other disputed questions and it is prayed that the trial court should have granted unconditional leave to defend.

( 7 ) MR. M. H. Shaikh, learned Advocate for respondents has, on the other hand, pointed out that, in fact, the principle that once the signature below negotiable instrument is disputed, unconditional leave should follow, as a matter of course, would not apply to the fact-situation obtaining before this Court because the defendant has in acceptance of liability already subsequently issued a cheque for amount of Rs. 7,000/ -. The said cheque when presented before the bank was dishonoured. He, therefore, submitted that it is not a case where no transaction has taken place between the parties and defendant has failed to explain as to how and under what circumstances he issued cheque of Rs. 7,000/- in favour of the petitioner. He, therefore, submitted that the trial Court has rightly exercised its discretion and jurisdiction and therefore this Court should not interfere.

( 8 ) IN my opinion, the proposition of law that once a signature below negotiable instrument is disputed by the executant thereto, unconditional leave should follow, as a matter of course, is too broadly and widely stated. The court of law