Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 510 (JK)

Mehraj-ud-Din Wani v. Farooq Ahmed Mir

2009-10-26

J.P.SINGH

body2009
1. Petitioner seeks setting aside of District Judge, Pulwamas Order of March 16, 2009 whereby finding No "Sufficient Cause" to condone delay, he dismissed his applications seeking condonation of delay in filing applications seeking Leave To Defend respondents suit for recovery of Rs. 6.00 lac filed under Order XXXVII of the Code of Civil Procedure, Svt 1977 (1920 A.D.), hereinafter to be referred as "Code", for short, alongwith application for Leave To Defend the suit. 2. I have considered the submissions made by learned counsel for the parties at the Bar and perused the trial Court records. 3. Perusal of the records of the trial Court reveals that Summons For Judgment had been issued on respondents application, which though supported by an Affidavit, does not indicate respondent to have verified either the Cause of Action or the Amount claimed in the suit or stating that in his belief, there was no defence to the suit, which is prescribed necessary requirement, which a plaintiff must comply with before seeking issuance of Summons For Judgment in suit filed under Order XXXVII of the Code. 4. All that the respondents Application and the Affidavit in support thereof says is that, the petitioner had caused appearance in the suit on February 14, 2009 and the respondent wanted to serve Summons For Judgment in accordance with Order XXXVII Rule 3(4) of the Code. 5. The statement made by the respondent in his Application and Affidavit does not, therefore, satisfy the statutory requirements of Order XXXVII Rule 3(4) of the Code. 6. Respondent- plaintiff is, therefore, found not to have complied with requirement of Order XXXVII Rule 3(4) of the Code. 7. A Court seized of a suit under Order XXXVII of the Code, gets jurisdiction to issue Summons For Judgment only when it was satisfied that the plaintiff had, on Affidavit verified the Cause of action and the Amount claimed in the suit and that according to the plaintiff, there was no defence to the suit. 8. 7. A Court seized of a suit under Order XXXVII of the Code, gets jurisdiction to issue Summons For Judgment only when it was satisfied that the plaintiff had, on Affidavit verified the Cause of action and the Amount claimed in the suit and that according to the plaintiff, there was no defence to the suit. 8. Respondent-plaintiff having not complied with the requirements of Order XXXVII Rule 3(4) of the Code, issuance of Summons For Judgment by the trial Court to the petitioner was thus, unwarranted and in this view of the matter, the order passed by the trial Court on petitioners applications, was unwarranted for question of grant or otherwise of Leave To Defend, to the petitioner, would arise only when there was valid Summons For Judgment. 9. The trial Court has thus, erred in issuing Summons For Judgment and resultantly rejecting petitioners applications seeking condonation of delay in filing application, besides Leave To Defend the suit. 10. The decree passed by the trial Court pursuant to its order impugned in the Revision Petition, during its currency in this Court, cannot thus, be sustained for the very basis of the decree i.e. that the Summons For Judgment having been found illegal, the decree passed by the trial Court, can not be justified and needs to be annulled. 11. For all what has been said above, exercising jurisdiction under Section 104 of the Constitution of Jammu and Kashmir, I would set aside the order passed by the trial Court on March 16, 2009 and resultant decree passed in File No. 187 Numberi of 2009 on 2-4-2009. The trial Court is, however, left free to deal with the respondents suit as warranted under law.