Serial No. 144 Supp. Cause List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) 322/2025 CM(5012/2025) Caveat 1826/2025 REYAZ AHMAD ITOO … Petitioner(s) Through: Mr. M.S Bhat, Advocate Mr. M.A Makroo, Advocate Vs. MUDASIR AHMAD DAR ...Respondent(s) Through: Ms. Ruqaya Siddique, Advocate (Caveator) CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER 13.08.2025 1. Article 227 of the Constitution of India has been invoked by the petitioner herein for seeking setting aside of order dated 16.07.2025, passed by the court of Principal District Judge, Kulgam in case titled as “Mudasir Ahmad Dar Vs. Reyaz Ahmad Itoo”. 2. The facts giving rise of the filing of the instant petition would reveals that a suit came to be filed by the plaintiff/respondent herein under Order 37 of the Code of Civil Procedure against the defendant/petitioner herein, on the premise that the defendant/petitioner herein issued one cheque amounting to Rs. 10.00 lacs in favour of the plaintiff/respondent herein in discharge of a debt which cheque got bounced upon its presentation for encashment, whereafter a demand was made by the plaintiff/respondent herein to the defendant/petitioner herein for payment of the said amount covered by the said cheque and upon his categoric refusal to pay the same, the plaintiff/respondent maintained the suit in question, whereafter during the pendency of the suit, the defendant/petitioner herein filed an application seeking leave to defend the suit on the premise that in fact the defendant/petitioner herein was doing business in partnership with plaintiff/respondent herein and in the said business, the plaintiff /respondent had been repeatedly requested the defendant/petitioner to render and settle the accounts on one hand and on the other hand filed false and frivolous suit in respect of the cheques belonging to the defendant/petitioner herein having been retained by the plaintiff/respondent herein during the course of the said partnership business in that, the defendant/petitioner herein is an illiterate and rustic villager and had no information about the misuse of his said cheques retained by the plaintiff/respondent herein. 3. The trial court upon considering the said application filed by the defendant/petitioner herein after inviting objections from the plaintiff/respondent herein in terms of the impugned order granted conditional leave to the defendant/petitioner herein while holding that the defendant/petitioner herein has put in moonshine and illusory defence, inasmuch as not having denied the cheques belonging to him. 4. The defendant/petitioner herein is aggrieved of the impugned order and has maintained the instant petition on multiple grounds. Heard learned counsel for the petitioner and the counsel for the caveator and perused the record. 5. Before proceeding to advert to the legality or otherwise of the impugned order, a reference hereunder to the provisions of Order XXXVII Rule 3 (5) CPC becomes imperative being germane to the controversy- “ORDER (37) (3) (5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious: Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.” A bare reading of the aforesaid provision postulates that leave to defend may be granted to a defendant in a suit under Order 37 CPC unconditionally or upon such terms as may appear to the Court to be just, thus suggesting that the discretion is left with the court dealing with the matter of grant or refusal of the leave to put a defendant on the terms in the facts and circumstances of a particular case on compliance whereof a defendant is entitled to defend the suit. 6. Law in regard to the aforesaid provisions of Order 37 Rule 3 sub- rule (5) has also been laid down in series of judgments, by the Apex Court, wherein it has been inter alia held that imposition of a condition to deposit an amount by the defendant in the Court before proceeding further in the matter against the defendant is justifiable and that grant of leave by a court under Order 37 Rule 3 (5) to the defendant to defend the case is discretionary in nature. 7. Keeping in mind the aforesaid position of law and having regard to the application filed by the defendant/petitioner herein seeking leave to defend the suit inasmuch as the order passed by the trial court impugned in the instant petition, this Court is of the considered opinion, that the trial court has passed the well reasoned order and exercised the discretion vested in it fairly and justly. 8. Under these circumstances, this Court is not inclined to interfere with the said discretionary order, moreso in view of the parameters setout by the Apex Court in regard to the exercise of supervisory jurisdiction vested under Article 227 of the Constitution, wherein the consistent view of the Apex Court has been that the High Court under Article 227 does not act as a Court of appeal or else has to correct mere errors of fact and law. 9. Resultantly, the petition fails and is accordingly dismissed. (JAVED IQBAL WANI) JUDGE SRINAGAR: 13.08.2025 “S.Nuzhat” Whether approved for reporting? Yes/No