[Cites 3, Cited by 0]
Jammu & Kashmir High Court - Srinagar Bench
Ghulam Nabi Pandit vs Mohammad Saleem Sheikh on 17 February, 2026
Author: Rahul Bharti
Bench: Rahul Bharti
Serial No.127
SUPPL. CAUSE LIST-I
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM(M) 47/2026
CM(675/2026
Ghulam Nabi Pandit ...Petitioner(s)
Through: Mr. Sahil Parvez Kachroo, Advocate
Vs.
Mohammad Saleem Sheikh ...Respondent(s)
Through:
CORAM:
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
17.02.2026
1. The petitioner figures as a defendant in a civil
suit preferred by the respondent/plaintiff in terms of
Order 37 of the Code of Civil Procedure, 1908 before
the Court of learned 3rd Additional District Judge,
Srinagar.
2. In said suit, the respondent/plaintiff is seeking
recovery of an amount of Rs. 30.00 lacs which the
respondent/plaintiff alleges to be recoverable from the
petitioner/defendant on the basis of a demand
promissory note said to have been executed by the
petitioner/defendant, thereby promising to pay to the
respondent/plaintiff on demand an amount of Rs.
30.00 lacs for the consideration received.
3. In addition, the respondent as plaintiff, has also
pressed into service an agreement with the
petitioner/plaintiff to said effect.
4. The petitioner upon being served with notice to
appear, entered appearance and then upon service of
summons for judgment came forward with an
application for leave to defend, which came to be
allowed by virtue of order dated 22.01.2026 with a
condition of deposit of 10% of suit amount of Rs.
30.00 lacs.
5. Thus, the trial court of learned 3rd Additional
District Judge, Srinagar has come to grant conditional
leave to defend in favour of the petitioner/defendant
which has left him aggrieved to come up with present
petition before this Court under Article 227 of the
Constitution of India seeking supervisory jurisdiction
for examination of legality and validity of the condition
imposed by the trial court of learned 3rd Additional
District Judge, Srinagar in granting leave to defend in
favour of the petitioner/defendant.
6. Learned counsel for the petitioner/defendant
comes forth with heavy reliance on the fact that leave
to defend ought to have been unconditional in favour
of the petitioner/defendant in view of position of law
settled by the Hon'ble Supreme Court of India in the
case titled "B.L. Kashyap and Sons Ltd. Vs. M/S
JMS Steels and Power Corporation and Anr.",
2022 Live Law (SC) 59.
7. The Hon'ble Supreme Court of India in
paragraph 17.1 of its said judgment has laid down
four situations in the context whereof leave to defend
is governed. For facility of reference, paragraph 17.1 of
the aforesaid judgment is reproduced below:-
"17.1. As noticed, if the defendant satisfied the
Court that he has substantial defence, i.e., a
defence which is likely to succeed, he is entitled to
unconditional leave to defend. In the second
eventuality, where the defendant raises triable
issues indicating a fair or bonafide or reasonable
defence, albeit not a positively good defence, he
would be ordinarily entitled to unconditional leave
to defend. In the third eventuality, where the
defendant raises triable issues, but it remains
doubtful if the defendant is raising the same in good
faith or about genuineness of the issues, the Trial
Court is expected to balance the requirements of
expeditious disposal of commercial causes on one
hand and of not shutting out triable issues by
unduly severe orders on the other. Therefore, the
Trial Court may impose conditions both as to time or
mode of trial as well as payment into the Court or
furnishing security. In the fourth eventuality, where
the proposed defence appear to be plausible but
improbable, heightened conditions may be imposed
as to the time or mode of trial as also of payment
into the Court or furnishing security or both, which
may extend to the entire principal sum together with
just and requisite interest."
8. The grant of leave to defend with a condition
imposed is envisaged in 4th eventuality where the
proposed defence appears to be plausible but
improbable, heightened conditions may be imposed as
to the time or mode of trial as also payment into the
Court or furnishing security or both.
9. Of course, the Hon'ble Supreme Court of India
says that where a defendant comes up with a
substantial defence to Order 37 suit put up against
him/her, then grant of leave is meant to be
unconditional and that is completely in consonance
with elementary principle of adjudication of a civil suit
that he who alleges is supposed to prove fact and not
the one who defends is supposed to disprove the
averments against him.
10. When seen in the context of the present case, as
to the reason for the imposition of condition of 10%
deposit of the suit amount, the trial court in
paragraph 10 comes forth with a reference that as per
the defendant there is an admission that he had taken
the loan from the respondent but the same is said to
have been repaid.
11. When this Court confronted the learned counsel
for the petitioner/defendant to show as to how said
loan availed and repaid by reference to the
respondent/plaintiff came to take place, it came to be
responded that an amount of Rs. 20.00 lacs as a loan
was repaid to the respondent/plaintiff that too in cash
in one installment.
12. In para 9 of his application for leave to defend,
the petitioner/defendant was meaning to be believed
that he made return of more than 40.00 lacs as
otherwise availed as a loan from the
respondent/plaintiff in cash without insisting at any
point of time taking receipt for the payment so
returned.
13. In the backdrop of this scenario, the trial court,
acted on the side of prudence and taking the defence
of the petitioner/defendant worth examining but with
a condition of deposit of 10% of suit amount and that
is meant to test bonafide of the petitioner/defendant
that he is sincere in pursuing his defence to the hilt
and not for the sake of availing leave to defend without
any rider and then rendering Order 37 suit into an
ordinary mode of adjudication as a regular suit.
14. This Court finds no illegality in the order of the
leave to defend so passed by the Court of 3rd
Additional District Judge, Srinagar and, as such, is
not inclined to entertain this petition at the instance of
the petitioner/defendant. Accordingly, this petition is
dismissed.
15. However, this Court makes it clear that nothing
observed herein in any manner be construed as a
reflection on the merits or demerits of the case of
either of the parties to the civil suit.
16. Copy of this order be forwarded by the Registrar
Judicial, Srinagar to the Court of learned 3rd
Additional District Judge, Srinagar for the sake of
notice.
(RAHUL BHARTI)
JUDGE
SRINAGAR:
17.02.2026
"Mir Arif"
