CM(M) No. 326/2025 Page 1 of 6 Serial No.09 Regular List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR. CM(M) No. 326/2025 CM No. 5031/2025 Ashiq Hussain Dar. ….. Petitioner(s) Through: - Mr. Parvaiz Nazir, Advocate. V/s Nasir Niyaz Najar. ….. Respondent(s) Through: - Nasir Niyaz Najar-respondent in person. CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER 11.08.2025. (O R A L) 1. In the instant petition, the petitioner herein has invoked the inherent power of this Court, enshrined under Article 227 of the Constitution for setting aside order dated 26th June, 2025 (for short “the impugned order), passed by the Court of Additional District Judge, Srinagar (for short the “trial court”) in case tiled “Nasir Niyaz Najar v. Ashiq Hussain Dar”. 2. The facts emerging from the record would reveal that the respondent herein has filed a suit under Order (XXXVII) CPC, against the defendant/petitioner herein before the trial court on the premise that he, the plaintiff/respondent herein as an Advocate by profession intended to purchase a parcel of land and in this regard the defendant/petitioner agreed to facilitate the purchase of the plot of land whereupon, the defendant/petitioner herein identified a parcel of land for sale to be purchase by the plaintiff/respondent herein against a sale consideration of Rs. 15,60,000/- in furtherance whereof an amount of Rs. 13,00000/- was paid through online banking by the plaintiff/respondent herein from his personal bank account as well CM(M) No. 326/2025 Page 2 of 6 as his wife’s bank account in the bank account of the defendant/petitioner herein, in lieu whereof, the defendant/petitioner executed a document/receipt as well. It also came to be averred in the suit by the plaintiff/respondent herein that post payment of the aforesaid part consideration as well as execution of the receipt thereof, the plaintiff/respondent herein approached the defendant/plaintiff for proper documentation of the land in order to give effect to the sale thereof, but the defendant/petitioner herein avoided the same and instead insisted for payment of balance sale consideration, as a consequence whereof, the plaintiff/respondent issued cheques in the name of the defendant/petitioner herein, where- after the plaintiff/respondent herein came to know that there is some dispute qua the land in question and upon being enquired from the defendant/plaintiff and his failure to give any satisfactory reply thereto, the plaintiff/respondent herein stopped the encashment of the cheques by dropping an email to the concerned bank. It came to be further averred by the plaintiff/respondent herein in the suit that the defendant/petitioner herein was approached thereafter repeatedly by him, the plaintiff/respondent herein, for return of the sale consideration received by him but he refused the same and instead avoided the plaintiff/respondent by using delay tactics, where after the plaintiff/respondent herein left with no option but to approach the court and file a suit. . 3. After the filing of the suit and summoning of the defendant/petitioner by the trial court, the defendant/petitioner preferred an application seeking leave to defend the suit, maintained on the premise that the suit under Order 37 CPC is not maintainable CM(M) No. 326/2025 Page 3 of 6 in the present form and that the court also lacks the territorial jurisdiction inasmuch as, the plaintiff/respondent herein in-fact received 6 Marlas of land from the defendant/petitioner herein and constructed a house thereon and though the plaintiff/respondent herein paid part of the sale consideration through online banking, issued three cheques in respect of balance sale consideration which cheques, however, got dishonored and, even after a demand made by the defendant/petitioner herein for the payment of the amount covered under the said cheques, the plaintiff/respondent herein failed to liquidate the said amount and instead chose to file the false and frivolous case. 4. The learned trial court after considering the said application filed by the defendant/petitioner herein, while taking into account the response filed thereto by the plaintiff/respondent herein in terms of the impugned order granted conditional leave to defend the suit to the defendant/petitioner herein, directing the defendant/petitioner to deposit 50% of the suit amount in the court in the shape of a bank guarantee within a period of 15 days whereupon aggrieved of the said order, the instant petition has been filed by the defendant/petitioner herein. Heard learned counsel for the petitioner as also the plaintiff/respondent and perused the record. 5. Law in regard to grant of leave to defend in a summary suit filed under Order 37 CPC, has been settled by the Apex Court in a series of judgments including the case titled as “IDBI Trusteeship Services Limited v. Hubtown Limited” reported in (2017) 1 SCC 568, wherein following has been held in paragraph-17:- CM(M) No. 326/2025 Page 4 of 6 “17. Accordingly, the principles stated in para 8 of Mechelec’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. 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.” 6. It is also significant to mention here that under Order 37, Rule (3) Sub-Rule (5), leave to defend can be granted to a defendant in a suit filed under Order 37 CPC, either conditional or upon such terms as may appear to the court to be just, thus, suggesting that the discretion in this regard is left with the court to put the defendant on terms in the facts and circumstances of a particular case on compliance of which terms and conditions a defendant is entitled to defend the suit. CM(M) No. 326/2025 Page 5 of 6 7. Keeping in mind the aforesaid position and principle of law and reverting back to the case in hand, the case setup by the defendant/petitioner herein while seeking leave to defend as been noticed in the preceding paragraphs and while risking repetition, that the plaintiff/respondent herein, in furtherance of purchase of the plot of land made part payment of the sale consideration through online banking and also issued three cheques for the remaining outstanding sale consideration which cheques however, got dishonored upon being presented for encashment before the bank and that the possession of plot of land in question stands delivered to the plaintiff/respondent herein whereupon the plaintiff/respondent herein constructed a residential house as well and is residing therein, which position however, stands vehemently denied by the plaintiff/respondent. 8. 8. A closer examination of the record available on the file inasmuch as, the impugned order would tend to show that the trial court has not been oblivious ether to the respective case setup by the parties, be it the suit filed by the plaintiff/respondent herein or the application filed by the defendant/petitioner herein, seeking leave to defend the suit besides the law on the subject and seemingly and rightly has opined and held that although the triable issues emerge in the matter for consideration in view of the case setup by the defendant/petitioner herein while seeking leave to defend, yet there exists a doubt qua the genuineness of the said triable issues, while opining further that the conduct of the defendants/petitioners herein seems to be lacking good faith, thus warranting grant of conditional CM(M) No. 326/2025 Page 6 of 6 leave in favour of the defendant/petitioner herein and consequently, granted the same in terms of the impugned order. 9. Since the trial court while exercising the discretion in the matter vested in it, in terms of Order 37,Rule (3) Sub-Rule (5) has concluded that a conditional leave instead unconditional is required to be granted to the defendant/petitioner herein, this Court, having regard to the facts of the case inasmuch as, law laid down by the Apex Court is not inclined to interfere qua the impugned discretionary order passed by the trial court in exercise of supervisory jurisdiction enshrined under Article 227 of the Constitution in presence of the judgment of the Apex Court passed in case titled as “Garmet Craft v. Prakash Chand Goel,” reported in (2022) 4 SCC 181 wherein the Apex Court has inter-alia held that the High Court while exercising supervisory jurisdiction does not act as a court of appeal. 10. Viewed thus, the petition lacks merit and is, accordingly, dismissed. (Javed Iqbal Wani) SRINAGAR Judge 11.08.2025 “Abdul Rashid” Whether approved for reporting? Yes/No Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document :19.08.2025 10:12