Recently, the single judge bench of the Jammu and Kashmir High Court held that once a defendant files an application for leave to defend the suit, the Court is legally bound to consider the defence put up by the defendant in such application on its merits notwithstanding the absence of the defendant on the date on which the said application is taken up for consideration.
Brief facts:
The factual matrix of the case is that the Respondent/Plaintiff had filed the suit against the Appellant/Defendant for recovery of an amount of Rs.7,32,000/ by invoking the provisions contained in Order 37 of the Code of Civil Procedure. After the service of summons, the defendant caused his appearance and filed the memo of appearance indicating therein his address. Thereafter the summons for judgment was served upon the defendant and in response, he filed an application for leave to defend the suit before the trial court. However, the defendant failed to appear and his application for leave to defend was dismissed by the trial court. Thereafter, an application seeking recall of the order was also filed and the same was dismissed by the trial court. The trial court passed the impugned judgment against the Defendant. Furthermore, an application under Order 37 Rule 4 CPC was also filed seeking the setting aside of the exparte decree passed by the said court. However, the said application came to be dismissed by the trial court. Aggrieved by this, the present appeal is filed on the ground that the court has dismissed his application for leave to defend in default of his appearance and not on merits, which is impermissible in law.
Observations of the court:
The Hon’ble Court observed that the first proviso to sub-rule 5 of Rule 3 of Order 37 CPC casts an obligation upon the Court not to refuse to leave to defend unless it is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defense to raise or that the defense intended to be put up by the defendant is frivolous or vexatious. Once an application for leave to defend is filed by a defendant before the Court, it is duty of the said Court to consider the facts disclosed by the defendant in the said application and thereafter determine whether the defendant has raised any substantial defense. If upon undertaking such an exercise, the Court comes to a conclusion that the defendant has raised a substantial defense, leave to defend the suit has to be granted in his favor and if the Court is of the view that the defense put up by the defendant in his application is frivolous or vexatious, the application has to be declined.
The court relied upon the judgments titled Sukhbir Singh vs. Jatinder Sharma and others, Balwant Rai vs. Mohan Lal, and Gh. Ahmad Wani vs. Gulzar Ahmad Guroo.
The court after taking into consideration the aforementioned judgments noted that once a defendant files an application for leave to defend the suit, the Court is legally bound to consider the defence put up by the defendant in such application on its merits notwithstanding the absence of the defendant on the date on which the said application is taken up for consideration.
Based on these considerations, the court was of the opinion that the approach of the learned trial court in dismissing the application of the appellant for leave to defend the suit for non-prosecution is not countenanced by law.
The decision of the court:
With the above direction, the court allowed the appeal and set aside the decree passed by the trial court.
Case Title: Ahsan Ahmad Malik v. Basharat Feroz Ganie
Coram: Hon’ble Mr. Justice Sanjay Dhar
Case No.: RFA No.88/2024
Advocate for the Appellant: Mr. Zahid Hussain, Advocate.
Advocate for the Respondent: Mr. T. A. Lone, Advocate
