Basheer Ahmad Bhat vs Tariq Ahmad Katoo
2022 Latest Caselaw 581 j&K/2

CORAM:

 

S. No. 17

 

 

 

 

 

Regular Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM(M) No. 41/2020
Basheer Ahmad Bhat ...Petitioner(s)
Through: Mr. Zahoor A. Shah, Adv.
Vs.
Tariq Ahmad Katoo ...Respondent(s)

HON'BLE MR JUSTICE VI ERJI KOUL, JUDGE

i ia is against ed 2" Additional District Judge, Srina v al. ouit has held that defence intended to be raised by the defendant/petitioner as narrated in the application, appears to be frivolous and cannot be grouped as substantial and consequently refused to grant leave to defend the suit.

The respondent has filed a suit under Order 37 of CPC before the learned 2™ Additional District Judge, Srinagar and the petitioner/defendant on being summoned filed an application under Order 37 Rule 3(5) of CPC and sought leave to defend the suit. Leave was declined by the Trial Court and the order declining leave to defend, has been called in question in this petition on the grounds that the Trial Court without taking into consideration the grounds in the application rejected the same. The grounds taken by him for leave to defend give rise to rival issues and are required adjudication thereof. He has raised defence with regard to genuineness of the documents etc., His plea has not been considered on touchstone of proviso to sub rule 3 of Rule 5 of Order 37 of CPC. Procedure to be followed in a suit filed under Order 37 is provided in the said order. On refusal of the application for leave to defend, the plaintiff is entitled to judgment forthwith. Rule 4

provides for setting aside of the decree which has been passed under

sub rule 6 and Rule 3. Rule 4 says that after decree, Court may, under special circumstances set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant/s to appear and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit. So Rule 4 provides the defendant to seek

setting aside of the decree which has been passed under Order 37.

3. What is the procedure, is that once leave to defend is refused, the plaintiff is entitled to judgment forthwith and after passing the judgment and decree defendant may either seeks setting aside the decree by invoking the provisions under Rule 4, on satisfying the judgment and ¢ le whereby his application for per the provisions would not available to him under Rule

4. Having regard to What has b 'e, this petition is without any merit and is, accordingly, ismissed. However the petitioner is at liberty to take recourse of the remedy as may be available to him in challenging the judgment and decree passed in the said suit.

5. Registry to sent copy of this order to Appellate Court.

(VINOD CHATTERJI KOUL) JUDGE

SRINAGAR

12.05.2022

Manzoor

MANZOOR UL HASSAN DAR

2022.05.13 16:24

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