Defendant must satisfy the court about availability of triable issue.

1. The above Civil Revision Petition is directed against the fair and decretal order dated 18. 1996 made in I.A. No.8764 of 1995 in O.S.No.3086 of 1994 by the XI Assistant Judge, City Civil Court, Madras, thereby refusing to grant unconditional leave to defend the suit and prove his case.

.2. It is the petitioner/defendant who filed the said application before the trial court under Order 37 Rule 3(5) C.P.C. praying to the effect as aforementioned alleging in the affidavit filed in support of the petition, that the suit is barred by pro-notes would show that they were executed at Thirunindravur where he resides and no cause of action would arise to the lower court; that the suit transaction was with one K. Shanmuga Mudaliar, and the plaintiff is one in whose favour the three pro-notes dated 5. 1984 were made over; that he had been given notice only after assignment of the pro-notes; that the amounts had not been specified either on the pro-notes or in the letter dated 22. 1990, thereby indicating that no consideration had passed on to the assignor thus rendering the assignment invalid.

3. Further averments of the affidavit filed before the lower court in support of the petition are that, various amounts have been paid on various dates and the endorsements made on the pro-notes have been made only for the purpose of limitation; that after the payment of interest, the entire principal amount of Rs.26,000 had been paid; that the plaintiff did not return the pro-notes, the amounts of which have been duly discharged and cancelled, but with a false plea that he failed to make endorsement, the plaintiff has come forward to file the vexatious suit; that the plea of the plaintiff that there is still more money due under the pro-notes is incorrect and without merit; that all the amounts due under the pro-notes dated 5. 1984 have been discharged; that only to harass him and to extort money from him, he has come forward to file the vexatious suit which is not maintainable in law or on facts; that the payments made, discharge of the pro-notes, the jurisdiction and limitation questions raised could only be proved in a fullfleged trial and hence the petition praying for an unconditional leave to defend the suit and prove his case.

.4. In the counter filed by the plaintiff, he would contend that on payment of an amount of Rs.5,000 on 4. 1991, endorsement had been effected on the back of the pro-notes and hence the suit filed on 4. 1994 was in time and no question of limitation would arise, that the allegation that the pro-notes were executed at Thirunindravur is incorrect, but the same was at Madras at the residence of K. Shanmuga Mudaliar on receipt of the amount by the petitioner; that had these allegations been true they should have been spelt out in the Lawyer’s notice dated 23. 1991 which inspite of receipt, the petitioner had not even replied thereby establishing that he had no defence of the question of limitation and jurisdiction: that the question of consent of the petitioner prior to making over the pro-notes which are not legally sustainable; that the amount due as on the date of assignment had not been specified either on the pro-notes or in the letter dated 22. 1991 are legally unsustainable; that had it been so, h e would not have paid the amount on 4. 1991 and effected the endorsement on the back of the pro-notes.

5. The further allegations such as, that the assignment of the pro-notes is sham and nominal and is invalid are up to the petitioner to prove; that there is no question of limitation at all; that the allegations of various other payments made on various other dates than that are found on the pro-notes with endorsement are all false and denied, The other allegations such as, that after the payment of interest the entire principal amount of Rs.26,000 had been paid; that the plaintiff did not have the pro-notes with him on that date; that the pro-notes had not been returned after due discharge of the amou