Revision becomes infructuous.

M.N. Chandurkar, C.J.

1. This revision petition is directed against the order of the III Assistant Judge, City Civil Court, Madras, rejecting the application for grant of unconditional leave to defend filed by the present petitioners-defendants (hereinafter referred to as the defendants) in O.S. No. 1523 of 1982 filed by the plaintiff. The plaintiff had filed the summary suit under Order 37 of the Code of Civil Procedure against the defendants for recovery of a sum of Rs. 11,525 with interest at 18 per cent per annum on Rs. 6,800 from the date of suit till realisation. The claim of the plaintiff was based on a credit bill of the value of Rs. 9,709.37 which according to the plaintiff represented a credit sale made on 1.9.1979 in respect of certain goods purchased by the defendants. According to the plaintiff, the defendants had agreed to pay the said amount within thirty days with interest at 18 per cent per annum and they also promised to send a 'C'-Form and to pay 6 per cent sales tax on the bill amount. The plaintiff had alleged that the defendants had returned goods of the value of Rs. 2,609.57 and had made cash payment of Rs. 299.80 and had failed to pay the balance amount as also to send the 'C'-Form. Thus, a sum of Rs. 6,800 was said to be due towards principal and Rs. 600 on account of sales tax and Rs. 4,125 for interest. The total claim thus came to Rs. 11,525.

2. The defendants disputed that the plaintiff was a registered firm or that Babulal who purported to represent the plaintiff-firm was a partner. This itself was a triable issue, according to the defendants. An unusual defence was raised that the bill was made for a smaller amount in order to avoid sales tax and to cheat the Revenue. A substantial defence raised was that the invoice was neither an order nor a contract and as such the suit was not maintainable as a summary suit under Order 37 of the Code of Civil Procedure. Repayment of Rs. 9,252.92 was pleaded and the actual total amount earlier due was said to be Rs. 10,713.89. It was pleaded that payments were made against cheques, but the cheques were not returned by the plaintiff and therefore the plaintiff was not entitled to rely upon the cheques. It was also contended that on the basis of such cheques an under-chapter suit would not be maintainable.

3. A further affidavit was filed by Babulal stating that the suit claim arose out of a contract under which the defendants had purchased stainless steel goods. The registration number of the plaintiff-firm was also given. The story of payments in lieu of cheques was denied and it was stated that no details of the alleged payments were given. It was also stated that if in fact payments were made the defendants would have made demand for the return of those cheques.

4. It appears that after the application of the defendant for grant of leave to defend the suit was rejected, a decree in the suit has been passed already. Initially, therefore, I was inclined to take the view that the revision itself had become infructuous as admittedly no appeal has been filed against the decree passed.

5. The plaintiff is not represented in this Court and though served no appearance has been entered by any counsel on plaintiff's behalf. A question which was raised and argued at the tearing was whether the revision had not become infructuous as the defendants have not filed any appeal against the decree passed subsequent to the order rejecting the application for unconditional leave, Since the plaintiff was not represented I had requested Mr. Padmanabhan and Mr. Sundaravaradan, Members of the Bar, to assist me in deciding as to whether the decree stands automatically set aside if the order rejecting the application for unconditional leave is once set aside.

6. The main contention raised by Mr. Shah on behalf of the defendant was that the plaintiff was required to be put to strict proof of the fact that the suit was based on a written contract and invoice by itself was not a contract