IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 WP(C).No. 12199 of 2008(B) -------------------------------------- AGAINST THE ORDER DATED 19/03/2008 IN IA.255/08 IN OS.11/2008 of SUB COURT, VADAKARA .................... PETITIONER: ------------------ DR.V.KUMARAN, S/O.GOVINDAN, AGED 69 YEARS, 'SREENILAYAM', ERAMALA AMSOM, ORKKATTERI DESOM, POST ORKKATTERI, VADAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENTS: ------------------------ ABDUL AZEES, S/O.MOIDU, AGED ABOUT 45 YEARS, TRADER, ARIKKARA HOUSE, POST ADUKKATH, KUTTIADI, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== W.P.(C) No.12199 OF 2008 ===================== Dated this the 9th day of April 2008 JUDGMENT This writ petition is preferred against the order of the learned Sub Judge, Vadakara in I.A.No.255 of 2008 in O.S.No.11 of 2008. The said petition is filed under Order 37 Rule 3(5) C.P.C by the defendant for leave to defend the suit. The plaintiff had instituted the suit contending that he is entitled to realise a sum of Rs.2,60,000/- from the defendant. When a cheque was issued and it was proceeded for encashment it had bounced back for insufficiency of funds and therefore the suit is filed. 2. The defendant in the suit, viz., the petitioner in the I.A would contend that he happened to issue a blank cheque. He admits his signature in the cheque but would contend that he has no transaction with the plaintiff at all. In paragraph 4 of the affidavit there is a categoric assertion that he does not owe the plaintiff any amount on any account and he has not executed any cheque. Learned counsel for the petitioner would contend before me that in order to find out whether the entire writings in the cheque are in the same handwriting, he has filed an application for sending the document for comparison of signature and handwriting and it will decide WP(C) 12199/2008 -:2:- the issue and then one can consider about the necessity to give permission under Order 37 Rule 3(5). I am afraid that such a course adopted may result only in confusion and what Order 37 rule 3(5) contemplates after its amendment is “provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious”. The opening word of the proviso indicates that granting is the rule and refusal is an exception and the court has to apply its mind whether such facts exists to refuse the permission sought for. It has been held that if the affidavit discloses triable issue, i.e. a plea which is at least plausible then leave should be granted whether the defence is legal or an equitable one and even though it may not ultimately turn out to be a good defence. Since there is an absolute denial on whatever ground it may be and sufficient reasons are indicated in the affidavit, I feel the court below was right in holding that leave to defend has to be granted. The said order does not suffer from any infirmity or illegality. Therefore the writ petition is dismissed. M.N.KRISHNAN, JUDGE Cdp/- WP(C) 12199/2008 -:3:-