' The respondent's suit is based upon a pronote. The defendant filed an application supported by an affidavit, for permission to defend the suit on the ground that the pronote in question is without consideration and it was written as a security for Watta marriages.. The learned Additional District Judge who was seized of the matter held that the execution of the pronote being admitted a presumption arises that under section 118 of the Negotiable Instruments Act, that negotiable, instrument was made or drawn for consideration. He also held that the defence set up by the defendant is vague and unsatisfactory. Despite this, after making an observation that the matter needed to be investigated into, he granted permission to the defendant to appear and defend the suit on his depositing a sum of Rs, 20,000 within for weeks from that day.
' The respondent's suit is based upon a pronote. The defendant filed an application supported by an affidavit, for permission to defend the suit on the ground that the pronote in question is without consideration and it was written as a security for Watta marriages.. The learned Additional District Judge who was seized of the matter held that the execution of the pronote being admitted a presumption arises that under section 118 of the Negotiable Instruments Act, that negotiable, instrument was made or drawn for consideration. He also held that the defence set up by the defendant is vague and unsatisfactory. Despite this, after making an observation that the matter needed to be investigated into, he granted permission to the defendant to appear and defend the suit on his depositing a sum of Rs, 20,000 within for weeks from that day.
2. The learned counsel submitted that on one hand the learned Court has held that the matter required investigation, after which he should have unconditionally granted permission to the defendant to defend the suit and on the other hand he has been asked to deposit a sum of Rs, 20,000 which amounts to passing a decree at this stage in regard to that amount. He further submitted that the petitioner should have been directed at most to furnish security.
3. I agree with the learned counsel that the findings of the learned Additional District Judge are self contradictory. This was not a fit case for according any permission to the defendant in view of the clear provisions of rule 3 of Order XXXVII, C. P. C. Which provides that "the Court shall, upon application by the defendant, give leave to appear and defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration or such other facts as the Court may deem sufficient to support the application". It is therefore, clear that in a case where it is not incumbent upon the holder of the pronote to prove consideration the permission to defend cannot be given unless there are other facts which are deemed sufficient by the Court to support the application. There are no other facts which could be deemed sufficient to support the application. There being no ground for grant of permission it looks strange that the petitioner who has been granted a concession should feel aggrieved against the order of imposition of condition.
4. The other argument of the learned counsel, is not correct. Once a Court comes to the conclusion that the matter requires consideration, but the matter is not clear, the Court has the jurisdiction to make a conditional order. Haji Karim and another v. Zikar Abdullah (1). This is a matter within the discretion of the Court. The Court could make an order of deposit of even Rs, 35,000 i,e, the entire money in suit. No revision is competent against the exercise of discretion. The petition is, therefore, without force for this reason too and is dismissed.
5. I may, however, strike a note of caution to the learned District Judges and Additional District Judges that 'While granting permission they should find out as a matter of fact whether the case is really covered by rule 3.
' A copy of this order shall be sent to the learned Additional District Judge.
(1) 1973 SCM R 100