Rule 3(5) of Order 37 (Summary Suits) of the Civil Procedure Code (CPC) deals with the application of the defendant for leave to defend in a summary suit. As per this provision, the defendant may apply for leave to defend a summary suit, by affidavit or otherwise, disclosing such facts as may be deemed sufficient to entitle him to defend. It does not specifically lay down that the defendant has necessarily to file the defence documents at this stage. What is necessary is that the defendant must disclose such facts which are sufficient to entitle him to defend in the summary suit. The Rule further provides that the leave to defend may generally be allowed by the court 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.
At the same time, even though it is not mandatory at such stage, if the defendant has certain defence documents that help him to prove his defence, it is advisable to file them at the time of applying for leave to defend. It will help the court in satisfying itself that the defendant has sufficient grounds to defend the summary suit.
Rule 3(5) of Order 37 of the Civil Procedure Code is reproduced below:
“(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:
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:
Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.”
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