1 S. No. 48 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No. 134/2025 Mohammad Amin Wani …Petitioner(s) Through: Ms. Rifat Ara Butt, Advocate. Vs. Mohammad Akbar Wani ...Respondent(s) Through: None. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 05.04.2025 (ORAL) 1. Supervisory Jurisdiction of this Court enshrined under Article 227 of the Constitution is being invoked by the petitioner herein in the instant petition for seeking quashing of order dated 18.12.2024 passed by the court of Principal District Judge, Srinagar in case titled as “Mohammad Akbar Wani Vs. Mohammad Amin Wani”. 2. Facts giving rise to the filing of instant petition would reveal that the plaintiff/respondent herein filed a suit under Order XXXVII CPC for recovery of an amount of Rs.7,15,525/- against the defendant petitioner herein on the premise that the plaintiff respondent herein entered into a partnership business with the defendant petitioner herein in the year 2007 however, differences and disputes arose between them which came to be settled and upon settlement of the accounts the defendant/petitioner herein was found to have liability of an amount of Rs.7,15,525/- towards the plaintiff respondent herein, in discharge whereof the defendant petitioner herein issued three cheques amounting to Rs.550,000/- in favour of the plaintiff respondent herein with further agreement that the defendant petitioner herein would pay the balance amount of Rs.1,65,000/- to the plaintiff respondent herein once the cheque amount is credited into the account of plaintiff respondent herein and that the said cheques upon being presented for encashment before the concerned bank got bounced on account of “insufficient funds”, which fact the plaintiff/respondent herein brought into the notice of the defendant/petitioner herein who 2 however, assured the plaintiff respondent herein that the liability will be cleared, but, the defendant petitioner herein failed to clear the liability, resulting into filing of the suit after pre-institution application filed by plaintiff respondent herein did not yield any result, whereupon the defendant/petitioner herein after entering appearance before the trial court filed application seeking leave to defend the suit which, application came to be contested by the plaintiff/respondent herein by filing response, whereafter the trial court in terms of the impugned order granted conditional leave to the defendant petitioner herein requiring him to furnish a bank security to the tune of Rs.5.50 lacs within 15 days from the date of passing of the order. 3. 3. The defendant/petitioner herein has challenged the impugned order in the instant petition, inter alia, on the premise that the trial court failed to appreciate that the suit was not maintainable having been filed after six years from the date of issuance of the cheques in question and that the trial court also failed to appreciate that there is no provision for condonation of delay in filing such suit and that the trial court also failed to appreciate that the plaintiff had not filed a valid affidavit with the suit which warranted the rejection of suit and that the case set up by the defendant petitioner herein in the application seeking leave to defend has not been rightly taken into consideration by the trial court. Heard counsel for the petitioner and perused the record available on file. 4. Before proceedings to advert to the case set up by the petitioner in the instant petition, it would be advantageous to refer to the law laid down by the Apex Court in regard to the provisions of Order XXXVII CPC in general and in particular the question of grant of leave to a defendant. A reference in this regard to the judgement of the Apex Court passed in case titled as “Mechelec Engineers and Manufacturers Vs. Basic Equipment Corporation” reported in 1976 (4) SCC 687, becomes imperative wherein at para 8 following has been laid: “8. In Smt. Kiranmoyee Dassi & Anr. v. Dr. J. Chatterjee, Das. J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by order 17 C.P.C. in the form of the following propositions: 3 "(a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leave to defend. (b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend. (c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the Plaintiff is not entitled to judgment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the Defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the Plaintiff is entitled to leave to sign judgment and the Defendant is not entitled to leave to defend. (e) If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the Plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise se- cured and give leave to the Defendant on such condition, and thereby show mercy to the Defendant by enabling him to try to prove a defence". 5. Keeping in mind the aforesaid position of law and having regard to the facts of the case noticed in the preceding paras inasmuch as the impugned order, it is manifest that the trial court has rightly passed the impugned order admittedly not being oblivious to the facts of the case as also the legal position occupying the field and seemingly in the process has not committed any illegality, irregularity or perversity while passing the impugned order. 6. Under these circumstances, this Court is not inclined to interfere with the impugned order, in exercise of the supervisory jurisdiction invoked by the petitioner, more so in view of law laid down by the Apex Court in case titled as “Shalini Shyam Shetty and Anr., Vs. Rajendra Shankar Patil”, reported in 2010 (8) SCC 329. (JAVED IQBAL WANI) JUDGE SRINAGAR 05.04.2025 Ishaq Whether the order is speaking? Yes/No Whether approved for reporting ? Yes/No