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2018 DIGILAW 32 (JK)

Masroor Ahmad Bhat v. Shabir Ahmad Khan

2018-01-31

JANAK RAJ KOTWAL

body2018
JUDGMENT : Janak Raj Kotwal, J. Petitioner (defendant) invokes writ as well as the supervisory jurisdiction under Section 104 of the State Constitution of this Court to seek quashing of order dated 22.05.2017 passed by the learned trial court in a summary suit under Order 37 CPC to the extent it directs him to deposit 50 per cent of the suit amount in the court as a precondition to grant of leave to defend the suit. 2. Facts leading to this petition, briefly stated, are that the summary suit for recovery of Rs. 2,50,000/- has been filed by the respondent (plaintiff) on the basis of three cheques, two of them valuing Rs. 1,00,000 each and the other valuing Rs. 50,000, said to have been issued by the petitioner to the respondent in discharge of a legal liability and to have bounced. Petitioner (defendant) sought leave to defend the suit on the ground that he does not owe any liability towards the respondent, whereas the cheques in question have been manipulated by the latter. It is alleged that the petitioner was having a business partnership with a relative of the respondent and some cheques owned by him were lying with the said relative of the respondent, which have been manipulated by the respondent by inserting his name in them. He has thrown a challenge to the said cheques in a suit filed by him against the respondent, which is pending before the court of learned Sub-Judge (Special Mobile Magistrate), Anantnag. 3. Learned trial court, having noticed that the issuance of suit cheques is not disputed by the petitioner and having regard to the plea taken by him, took the view that the petitioner may be granted conditional leave and therefore, granted him leave to defend the suit subject to his depositing 50 per cent of the suit amount in the court. Hence this petition. 4. Baseline of the submissions made by the learned counsel for the petitioner, Mr. P.S. Ahmad, Advocate, was that the petitioner having not admitted any part of the liability or the issuance of the cheques in favour of the respondents, he could not have been asked to deposit 50 per cent of the suit amount as a precondition to defend the suit. P.S. Ahmad, Advocate, was that the petitioner having not admitted any part of the liability or the issuance of the cheques in favour of the respondents, he could not have been asked to deposit 50 per cent of the suit amount as a precondition to defend the suit. Learned counsel argued that the genuineness of the cheques relied upon by the respondent has been challenged by the petitioner in the suit filed by him. Learned counsel argued also that the respondent has forged the cheques, so in the facts and circumstances of the case, petitioner could not have been burdened with depositing of 50 per cent of the suit amount, thereby causing obstruction in his right to defend the suit. 5. Respondent has opposed the petition. It is contended that the petitioner had purchased apples from the respondent and the three cheques were issued by the former in this transaction. Learned counsel for the respondent, Mr. Owais Geelani, Advocate, argued that the petitioner had filed the suit questioning the genuineness of the cheques only to prolong the litigation. Learned counsel pointed out that the said suit has been dismissed by the court for non-prosecution by the petitioner, therein plaintiff, on 02.02.2017 and the copy of the order passed by the court is annexed as annexure-4 to the objections filed on behalf of the respondent. 6. Principles governing grant of leave to defend a summary suit are engrafted in Sub-Rules (4), (5) and (6) of Rule 3 of Order 37 CPC. These three Rules read as under: “(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No.4-A, in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. (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 Judges 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.” (6) At the hearing of such summons for judgment,- (a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or (b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.” 7. A plain and closer look on the aforementioned provisions would show the court in its discretion as a general principle may grant leave to the defendant to defend the suit filed against him, unconditionally or upon such terms as may appear to the court to be just. The leave, however, shall not be refused unless 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 raised is frivolous and vexatious. The leave, however, shall not be refused unless 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 raised is frivolous and vexatious. A mandatory requirement provided in 2nd proviso to Sub-Rule (5) of Rule 3 is that leave to defend the suit shall not be granted unless the defendant deposits in the court that part of the suit amount, which he admits to be payable by him. Contextually, under clause (b) to Sub-Rule (6), in a case where defendant is permitted by the court to defend the suit as to the whole or any part of the claim, the court in its discretion may direct him to give such security and within such time as may be fixed by the court. 8. It is thus clear that if in a given case the defendant makes out a case for grant of leave, the court in its discretion may grant such leave either unconditionally or upon such terms as may appear to be just and may also ask the defendant to give such security as may be fixed by the court within a stipulated time. On the other hand, if in a given case defendant admits a part of the suit amount claimed by the plaintiff and makes out a sufficient ground for grant of leave to defend the suit in regard to the remaining amount, the leave shall be granted only after he deposits in the court the admitted amount. To deposit the admitted amount in the court, therefore, is a statutory duty cast on the defendant before seeking leave to defend the suit in regard to the remaining amount, whereas imposition of conditions for granting leave to defend the whole or a part of the suit, is within the discretion of the trial court. 9. In the case on hand, learned trial court, while finding the case fit for grant of leave to the petitioner (defendant) to defend the suit filed by the respondent (plaintiff), has not given the leave unconditionally and has imposed condition of depositing 50 per cent of the suit amount in the court. 9. In the case on hand, learned trial court, while finding the case fit for grant of leave to the petitioner (defendant) to defend the suit filed by the respondent (plaintiff), has not given the leave unconditionally and has imposed condition of depositing 50 per cent of the suit amount in the court. The question raised by the petitioner in this petition is, as to whether, after having found the case fit for grant of leave, the leave should have been granted unconditionally and the condition so imposed could not have been imposed. 10. As indicated above, it is open for the court in grant leave to defend the suit on such terms as may appear to the court to be just. Whereas it is mandatory for the court not to grant leave to defend the suit unless admitted amount, if any, is deposited in the court, there is no bar in imposing a condition of depositing part of the suit amount in the court even if, no part of such amount is admitted by the defendant. To say in simple words, it is open for the court to impose a condition on the defendant to deposit a part of the suit amount in the court for granting him leave to defend the suit filed against him. 11. It is noticed that in the application seeking grant of leave to defend the suit, copy whereof has been produced by the petitioner as annexure-F, the petitioner (defendant) has not specifically denied to have signed the three cheques on which the plaintiffs, suit is based. What is pleaded in the application is that certain cheques owned by him were lying with his business partner, who happened to be a relative of the plaintiff, and the said cheques were manipulated by the plaintiff by inserting his name in them. The petitioner seems to have carefully opted not to say that the said cheques were not even signed by him. The petitioner seems to have carefully opted not to say that the said cheques were not even signed by him. The filing of the suit by the petitioner, in which he claims to have challenged the genuineness of the three cheques, will make no significant difference insofar as the summary suit filed by the respondent is concerned because the plea taken in that suit is not stated to be different than the grounds on which the summary suit filed by the respondent is sought to be defended, notwithstanding that the said suit is stated to have been dismissed by the court on 02.02.2017, that is, prior to the passing of the impugned order on 22.05.2017. 12. For all that said and discussed above, the learned trial court, having regard to the nature of the grounds on which leave has been sought, cannot be said to have erred in imposing condition of depositing 50 per cent of the suit amount in the court for grant of leave to the petitioner to defend the suit and in the facts and circumstances of the case, the condition so imposed cannot be held to be unjustified. 13. Viewed thus, this petition has no merit and is therefore, dismissed.