Abdul Rashid Dar & Anr vs Reyaz Ahmad Kuchay
2022 Latest Caselaw 1997 j&K/2

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                                             Reserved on:   01.11.2022
                                             Pronounced on: 11.11.2022



                          CM(M) No.216/2022

ABDUL RASHID DAR & ANR.                          ... PETITIONER(S)

                   Through: - Mr. Adil Parray, Advocate.

Vs.

REYAZ AHMAD KUCHAY                            ...RESPONDENT(S)
                   Through: - Mr. S. N. Ratanpuri, Advocate.


CORAM:       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                             JUDGMENT

1) The petitioners have invoked the jurisdiction of this Court under

Section 104 of the Constitution of J&K, which is in pari materia with

Article 227 of the Constitution of India, for challenging order dated

30.08.2018 passed by learned Additional District Judge, Srinagar, in a

suit filed by respondent against the them. By virtue of the impugned

order, the petitioners (hereinafter referred to as the defendants) have

been granted conditional leave to defend the suit filed by the respondent

(hereinafter referred to as the plaintiff) and they have been directed to

deposit an amount of Rs.11,50,000/ in the Court or to furnish cash

security in the shape of bank guarantee for the aforesaid amount.

Page |2 CM(M) No.216/2022

2) The record would reveal that the plaintiff has filed a suit for

recovery of Rs.12.00 lacs from the defendants under the provisions of

Order 37 of the Civil Procedure Code. It is the case of the plaintiff that

defendant No.1 (petitioner No.1 herein) approached him and asked him

to invest money in setting up of a poultry farm for which defendant

No.1 was to provide the land. According to the plaintiff, he paid an

aggregate amount of Rs.12.00 lacs to the defendants out of which an

amount of Rs.9.70/ lacs was paid in cash to defendant No.1 whereas an

amount of Rs.2.30 lacs was transferred into the accounts of defendant

No.2 and defendant No.3, who was later on deleted from the array of

defendants. The plaintiff further submitted that defendant No.1

executed a promissory note for an amount of Rs.12.00 lacs as

guarantee. According to the plaintiff, he asked the defendants to

execute partnership deed for the purpose of setting up of poultry

business but they failed to do so. It is further alleged that the defendants

failed to adhere to the agreed terms and conditions and the poultry farm

was not set up nor they returned the money advanced by the plaintiff.

3) It appears that the plaintiff has filed the suit as a 'pauper/indigent

person' and permission to file the suit as an 'indigent person' was

granted by the trial court vide order dated 30.01.2018 after holding

enquiry through Tehsildar concerned, whereafter summons in the

prescribed form were issued to the defendants including the petitioners Page |3 CM(M) No.216/2022

herein, who filed an application for leave to defend the suit in terms of

sub-rule (5) of Rule 3 of Order 37 of the CPC.

4) In their application, the defendants submitted that even as per the

case of plaintiff, defendant No.2 has not executed any document that

would warrant filing of a suit under Order 37 of the CPC as he is neither

alleged to have executed any hundi or promissory note nor he is alleged

to have executed any written agreement etc. It was further contended

that defendant No.2 has neither issued any hundi nor has he executed

the promissory note on the basis of which the suit has been filed by the

plaintiff. The defendants went on to contend that the suit has been filed

for recovery of Rs.12.00 lacs but the promissory note, on the basis of

which the suit has been filed, is only for an amount of Rs.10.00 lacs,

therefore, the suit under the provisions of Order 37 of the CPC is not

maintainable. It has been further contended that if contention of the

plaintiff that he had advanced a sum of Rs.9.70 lacs to defendant No.1,

is accepted, then there was no occasion for the said defendant to execute

promissory note for an amount of Rs.12.00 lacs, as has been claimed in

the plaint. The defendants have also objected to the grant of leave to the

plaintiff to file suit as an 'indigent person' on the ground that the

plaintiff earns sufficient income for paying the court fees.

5) The learned trial court, after hearing the parties and considering

the defence put up by the defendants in their application for leave to

defend, came to the conclusion that the plea raised by the defendants Page |4 CM(M) No.216/2022

that they have not executed the hundi and that the same is fabricated,

is illusory and not real. According to the learned trial court, the

application seeking leave to defend the suit appears to be wholly

misplaced and based on false and fabricated facts. After making these

observations, the learned trial court concluded that the defence put up

by the defendants is illusory and sham and, as such, the defendants

cannot be granted unconditional leave to defend. Accordingly, vide the

impugned order, the learned trial court granted leave to the defendants

to defend the suit subject to the condition that they shall deposit

Rs.11,50,000/ in the Court or subject to the condition of furnishing of

bank guarantee for the aforesaid amount.

6) The petitioners/defendants have challenged the impugned order

on the grounds that the learned trial court has overlooked the parameters

laid down for grant of leave to defend and that it has exercised its

jurisdiction illegally and with material irregularity causing failure of

justice. It has been contended that the conditional leave to defend

granted by the trial court to the petitioners/defendants is causing grave

injustice to them, particularly when the petitioner No.1 has clearly

denied the execution of hundi/promissory note.

7) I have heard learned counsel for the parties and perused the

record of the case including the trial court record.

Page |5 CM(M) No.216/2022

8) Before dealing with the contentions raised by the petitioner in the

instant petition, it would be apt to examine the nature and scope of

jurisdiction of this Court under Article 227 of the Constitution of India.

Under the aforesaid Article, the High Court is vested with the

supervisory power to ensure that all subordinate courts and Tribunals

exercise their powers vested in them within the bounds of their

authority. The nature and scope of power of the High Court under

Article 227 of the Constitution has been a subject matter of discussion

in several judgments of the Supreme Court. It would be apt to notice

some of these judgments to have an idea about the nature and scope of

the supervisory power of the High Court under Article 227.

9) The Supreme Court in the case of Jai Singh and others vs.

Municipal Corporation of Delhi and another, (2010) 9 SCC 385, while

considering the aforesaid aspect, has observed as under:

"15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care Page |6 CM(M) No.216/2022

and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It cannot be exercised like a `bull in a china shop', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an appellate court and re- appreciate the evidence. Generally, it cannot substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.

10) In a recent judgment in the case of Garment Craft vs. Prakash

Chand Goel, (2022) 4 SCC 181, the Supreme Court while explaining

the power of the High Court under Article 227 of the Constitution,

relied upon its earlier judgment in the case of Estralla Rubber vs. Dass

Estate (Pvt) Ltd. (2001) 8 SCC 97 and quoted with approval the

following observations of the aforesaid judgment:

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of Page |7 CM(M) No.216/2022

fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

11) From the foregoing analysis of law on the subject, it is clear that

the High Court while exercising its powers under Article 227 of the

Constitution has not to act as an appellate court and substitute its own

judgment in place of the subordinate courts to correct an error. The

High Court has to exercise its supervisory power with great care and

caution and this jurisdiction can be exercised where there is any flagrant

abuse of fundamental principles of law or justice and not otherwise. It

is in the light of these principles that the instant case is required to be

examined.

12) In the instant case, the plaintiff/respondent claims that he had

advanced a sum of Rs.9.70 lacs to defendant No.1 and a sum of Rs.2.30

lacs to other defendants out of which an amount of Rs.1.80 lacs was

transferred to the account of defendant No.2 and a sum of Rs.50,000/

was transferred into the account of erstwhile defendant No.3, against

whom the plaintiff has abandoned his claim during the pendency of the

suit. The plaintiff claims that the aforesaid amount was paid by him to

the defendants for setting up of poultry business with them.

Page |8 CM(M) No.216/2022

13) In the application for leave to defend filed by the defendants

before the trial court, they have not denied the receipt of money from

the plaintiff. The only contention that has been raised by the defendants

is that the promissory note, on the basis of which the suit has been filed,

is for an amount of Rs.10.00 lacs whereas only an amount of Rs.9.70

lacs was advanced by the plaintiff to defendant No.1. Defendant No.1

has not, in clear terms, denied execution of the promissory note in the

application for leave to defend. What the said defendant has averred in

the application is that the hundi, on the basis of which the suit has been

filed, is wrong and incorrect, though the defendant No.1 has denied his

signatures on the said hundi. The other ground urged by the defendants

in their application is that the suit under Order 37 of the CPC to the

extent of amount having been paid into the account of defendant No.2

is not maintainable as the said defendant has not executed any

document contemplated under the aforesaid provision in favour of the

plaintiff.

14) As already noted, the receipt of money by the defendants is not

disputed in the application for leave to defend. It is correct that the

promissory note alleged to have been executed by defendant No.1 is for

an amount of Rs.10.00 lacs whereas, according to the plaintiff, only an

amount of Rs.9.70 lacs was paid to the said defendant. Merely because

the promissory note is for an amount which is more than what was

advanced by the plaintiff to defendant No.1 does not make his case Page |9 CM(M) No.216/2022

doubtful as the said promissory note, according to the plaintiff, was

executed by defendant No.1 as a guarantee. In the face of these facts

that have emerged from the record, prima facie, it appears that the

defence put up by the defendants in the application for leave to defend

boarders on peripheral issues and not on main issue relating to the

question as to whether they owe money to the plaintiff. In this regard,

the defendants have kept a mysterious silence in their application for

leave to defend. Therefore, the trial court is right in observing that the

defence put up by the defendants in their application for leave to defend

appears to be illusory.

15) The grant of leave to defend in a summary suit filed under Order

37 of the CPC is governed by the principles as enumerated by the

Supreme Court in the case of IDBI Trusteeship Services Limited vs.

Hubtown Limited, (2017) 1 SCC 568. Para (17) of the said judgment

is relevant to the context and the same is reproduced as under:

17. Accordingly, the principles stated in para 8 of Mechele's case will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case as follows:

i. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.

ii. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.

P a g e | 10 CM(M) No.216/2022

iii. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.

iv. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.

V. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.

vi. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court."

As is clear from Clause (vi) of the aforequoted judgment, if any

part of the amount claimed by the plaintiff is admitted by the defendant

to be due from him, leave to defend the suit cannot be granted unless

the amount so admitted to be due is deposited by the defendant in the

court.

16) In the instant case, as already noted, the defendants have not

specifically raised any dispute with regard to the receipt of money from P a g e | 11 CM(M) No.216/2022

the plaintiff nor have they claimed that after receipt of the money, they

have repaid the same to the plaintiff. In view of this position, the

aforesaid principle laid down by the Supreme Court clearly applies to

the instant case. Therefore, the learned trial court has rightly refused to

grant unconditional leave to defend to the defendants/petitioners.

17) The judgments passed by this Court in the cases of Ikhlaq Ahmad

Wani vs. Ghulam Nabi Pandith (CFA No.33/2018 decided on

12.12.2018) and Mukhtar Ahamd & anr. Vs. Mehraj-ud-din & anr.

2003 (2) JKJ 68, relied upon by learned counsel for the petitioners, are

not applicable to the facts of the instant case for the reason that the facts

of the aforesaid cases are entirely on a different footing.

18) For the foregoing reasons, I do not find any illegality, much less

a gross illegality, having been committed by the learned trial court

while passing the impugned order. The petition lacks merit and is

dismissed accordingly.

19) A copy of this order be sent to the learned trial court for

information.

(SANJAY DHAR) JUDGE Srinagar, 11.11.2022 "Bhat Altaf, PS"

                   Whether the order is speaking:       Yes/No
                   Whether the order is reportable:     Yes/No