1 Serial No. 132 supp. Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CR 43/2025 CM 5314/2025 Caveat 1581/2025 MOHAMMAD SULTAN KOKA … Petitioner(s) Through: Mr. M. Ayoub Bhat, Advocate with Mr. Saiqb Amin Parray, Advocate Vs. MOHAMMAD ASHRAF WANI ...Respondent(s) Through: Mr. M.Sultan, Advocate CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER 20.08.2025 ORAL 1. The petitioner herein in the instant petition has invoked Section 115 of CPC for seeking quashing of order dated 23.06.2025 read with order dated 12.08.2025 passed by the Court of Additional District Judge, Srinagar. 2. Facts giving rise to the filing of the instant petition would reveal that the respondent herein filed a suit against the petitioner herein under Order XXXVII (37) of Code of Civil Procedure for recovery of an amount of Rs. 30.00 lacs covered by two cheques dated 18.11.2024 amounting to Rs. 20.00 lacs and dated 25.11.2024 amounting to Rs. 10.00 lacs respectively claimed to have been issued by the defendant/ petitioner herein in favour of 2 the plaintiff/respondent herein in lieu of an advance sale consideration qua a plot of land claimed to have been paid by the plaintiff/respondent herein to the defendant/petitioner herein. 3. It is stated in the suit that the said cheques have had got bounced upon being presented for encashment by the plaintiff/respondent herein before the Bank and returned back to the plaintiff/respondent herein by the Bank through a memo dated 29.11.2024 with endorsement that the account pertaining to the cheques had grown “dormant/inactive”, whereafter the plaintiff/respondent issued a notice to the defendant/petitioner herein informing him about the bouncing of the cheques as also making a demand for payment of the amount covered by the said cheques, in which the defendant/petitioner herein failed, thus giving rise to a cause of action to the plaintiff/respondent herein to maintain the suit. 4. The suit upon its presentation before the trial court and after proceeding there with the same in terms of Order XXXVII CPC, an application came to be filed by the defendant/petitioner herein seeking leave to defend the suit. 5. It came to be pleaded in the said application that, he, the defendant/petitioner herein is brother-in-law of the plaintiff/respondent herein and that, he, defendant/petitioner herein has purchased a plot of land bearing No. 58 measuring 10 marlas in Cooperative Society, Sidhra, Jammu and constructed a house thereon and on account of his some domestic problems, the registration of the said plot of land could not done by the defendant/petitioner herein in his own name, however, got it 3 registered in the name of the plaintiff/respondent herein being very close to the defendant/petitioner herein and that the house in question though was constructed jointly upon the said plot of land, however, the major portion of expenses incurred therein the said construction was borne by the defendant/petitioner herein alone being evident from the bills and bank statements and that after completing the construction of the said house the defendant/petitioner herein also spent a huge amount on the furnishing of the said house and thereafter started residing therein in the said house from the year 2010 till 2023 and the plaintiff/respondent herein would also occasionally reside therein in the said house during winter season and that subsequently the defendant/petitioner herein requested the plaintiff/respondent herein for execution of joint appropriate documents qua the ownership of the said house and land and though the plaintiff/respondent herein initially agreed to execute such a document for reflecting the joint ownership of the said property in equal shares between them yet later declined the same and relations between them remained strained for more than a decade which resulted in institution of the suits/ cross suits in the year 2023 between the plaintiff/respondent and defendant/petitioner herein in the Courts at Jammu and that while residing therein in the said residential house, various house hold articles and items lying therein in the said house belong to the defendant/petitioner herein came to stolen by plaintiff/respondent herein along with the cheque book of the defendant/petitioner herein, although the bank account qua the said cheque book of the 4 defendant/petitioner herein had remained in-active since years altogether and that the plaintiff/respondent herein not only stolen the said cheque book but also filled up the particulars/ contents in the cheques of the said cheque book and even put the signatures of the defendant/petitioner on the cheques himself, and that, as such, the defendant/petitioner herein has a cogent, strong and substantial defence to contest the suit rendering him eligible and entitled to the grant of an un-conditional leave to defend the said suit. 6. The aforesaid application upon being contested by the plaintiff/respondent herein though without filing any separate objections thereto, while, adopting the memo of plaint as response to the said application, the trial court in terms of order dated 23.06.2025, concluded that the defendant/petitioner herein has raised some triable issues, but a doubt exists in the mind of the Court about the genuineness of the said triable issues put forth by the defendant/petitioner herein and on account of lack of good faith in the cause of the defendant/petitioner herein for not having set into motion any criminal action against the plaintiff qua the allegations of stealing of the cheques in question, granted conditional leave to the defendant/petitioner herein directing the defendant/petitioner to deposit 50% of the total amount of the suit in the court in the shape of bank guarantee within a period of 45 days from the date of the order. 7. Dissatisfied with the said order dated 23.06.2025, the defendant/petitioner herein filed a review petition bearing No. CR No. 43/2025 on 19.08.2025, before the trial court for reviewing of 5 the said order on the premise that the court has over looked the fact that the defendant/petitioner herein before the Court at Jammu, wherein the parties are litigating qua the property in question had submitted an itinerary of various goods/articles which also included the mention of the lost/ stolen cheque book and in connection therewith that the defendant/petitioner herein had also approached the police, and, as such, the doubt recorded by the court about the good faith of the defendant/petitioner herein as also about the genuineness of the issues warrants review of the order. 8. 8. The said review petition, however, came to be dismissed by the trial Court below in terms of order dated 12.08.2025, which too is impugned in the instant petition besides the basic order of grant of conditional leave dated 23.06.2025. Heard the counsel for the petitioner as also the counsel for the caveator/respondent and perused the record. 9. Before proceedings to determine the legality or otherwise of the impugned orders, it would be appropriate to refer to ambit and scope of Order XXXVII (37) Rule (3) Sub Rule (5) of the Code of Civil Procedure. “Order 37 Rule 3(5) CPC deals with leave to defend a summary suit and provides that a leave to defend can be granted in the said suit to the defendant either conditional or upon such terms as may appear to the court to be just and to put the defendant on terms in the facts and circumstances of a particular case on compliance of which terms and conditions, the defendant is entitled to defend the suit”. The Apex Court in series of judgments including in case titled as “IDBI Trusteeship Services Ltd. Vs. Hubtown 6 Limited reported in 2017 (1) SCC 568”, has said qua Order 37 (3) (5) wherein following has been held in para 17 as under:- 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 7 defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.” 10. Keeping in mind the aforesaid position of law and coming back to the case in hand, it is not in dispute that the defendant/petitioner herein while seeking leave to defend the suit have had specifically pleaded that the cheques in question on the basis of which the suit came to be maintained by the plaintiff/respondent herein belonged to him have had been stolen by the plaintiff/respondent being a close relation (brother-in-law) of the defendant/petitioner herein from the house situated at Sidhra Jammu as the plaintiff/respondent herein also used to stay therein in the said house during winter season and that a dispute in connection with the said house as well as the plot of land upon which the said house was build jointly by the them arose resulting into institution of suit, cross suits in the courts at Jammu and that in the said suits, he, the defendant/petitioner herein have had submitted an itinerary regarding various articles missing there from the said house including the cheques in question and had also stated thereafter in the review petition filed before the trial court that the police concerned have also been informed about the same. 11. 11. The trial court though seems to have had not be oblivious to the said pleas raised by the defendant/petitioner herein initially in the application and thereafter in the review application yet declined the grant of unconditional leave to the defendant petitioner although the trail court have had opined that the defendant/petitioner herein has raised triable issue yet 8 purportedly doubted the genuineness of the said triable issues inasmuch as held lack of good faith on the part of the defendant/petitioner herein only on account of non-launching of criminal prosecution by the defendant/petitioner herein against the plaintiff/respondent herein qua the alleged stealing of cheques in question having admittedly overlooked the surrounding facts including the plea of submission of itinerary before the court at Jammu in the case filed pertaining to property in question which itinerary was said to be containing the cheque book in question as also the report claimed to have laid before the police in connection therewith. 12. The trial court seemingly has overlooked these fundamental aspects of the case and has thus, doubted the genuineness of the triable issue raised by the defendant-petitioner in the application inasmuch as opined about the lack of good faith in the cause projected by the defendant/petitioner and has in the process not only grossly erred while exercising its discretion vested in terms of Order 37 Rule 3(5) CPC but has also caused failure of justice. Besides the impugned orders are found to have been passed by the trial court in utter disregard to the principles of the law laid down by the Apex Court in the judgment supra, thus, warranting exercise of Supervisory Jurisdiction vested in this Court under Article 227 of the Constitution notwithstanding the filing instant petition by the petitioner under section 115 of the Code of Civil Procedure, while overruling the preliminary objections raised by the counsel for the respondent/caveator qua the maintainability of the petition having been filed under section 115 CPC. 9 13. Viewed thus, the impugned orders are not legally sustainable and are accordingly set aside, as a consequence whereof the application filed by the defendant/petitioner herein seeking leave to defend the suit is found to be raising triable issues indicating a fair and reasonable defence, although not a positively good defence, yet entitled to an unconditional leave to defend the suit. Accordingly, the said application shall stands allowed and disposed of. (JAVED IQBAL WANI) JUDGE SRINAGAR: 20.08.2025 “S.Nuzhat” Whether the order is speaking Yes/No Whether the order is reporting Yes/No