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2019 DIGILAW 246 (JK)

Mashooq Ahmad Lone v. Mohammad Saleem Ganai

2019-04-22

RASHID ALI DAR

body2019
ORDER : Rashid Ali Dar, J. 1. Learned Principal District Judge, Anantnag has granted conditional leave in favour of the petitioner herein on his appearance before the learned trial court after the institution of the suit in terms of Order 37 of CPC, whereby recovery of Rs. 30,20,000/- was sought from the defendant (petitioner herein), while it is being pleaded that the defendant-petitioner herein had issued three cheques in favour of the respondent. Learned District Judge has taken note of the pleadings of the parties and referred certain judgments of the Hon'ble Supreme Court and High Courts in his order, impugned herein. 2. The petitioner herein had submitted the application for grant of leave on his appearance before the learned trial court while pleading that; The said court, where the suit has been filed, is lacking the territorial jurisdiction to try the suit and on such count alone the suit of the plaintiff is liable to be dismissed; The petitioner and the respondent herein have some sort of business relations between them and one deal was discussed, for that some amount was to be invested by them to get the deal matured. That the plaintiff (respondent herein) was reluctant to invest the money and asked for some kind of security; it is in that regard that the cheques were handed over to him, which were blank cheques with no names or dates mentioned on them. However, the deal got cancelled and the plaintiff was asked to return the cheques but on one pretext or the other he dodged the petitioner herein and surprisingly has misused the cheques by filling the same of his own with exaggerated amounts and filed the suit based on false, frivolous and fabricated grounds. That the defendant (petitioner herein) is not a land broker, as such, there is no question of receiving any amount from the plaintiff (respondent herein) for providing land to him. Therefore, the defendant (petitioner herein) was having a valid, good and substantial defence to the suit filed by the plaintiff (respondent herein).' 3. Objections to this application were filed by the other side, refuting all the grounds taken in the said application. 4. It would be proper herein for appreciating the matter in proper perspective to have a glance of the plaint/suit wherein respondent herein had taken the following grounds for grant of decree for realisation of the amount of Rs. Objections to this application were filed by the other side, refuting all the grounds taken in the said application. 4. It would be proper herein for appreciating the matter in proper perspective to have a glance of the plaint/suit wherein respondent herein had taken the following grounds for grant of decree for realisation of the amount of Rs. 30,20,000/-:- "...That the defendant has agreed to sold the land to the plaintiff and has received an amount of Rs. 30,20,000/- for the plaintiff, thereafter he failed to deliver the land to the plaintiff, the plaintiff demanded the money from the defendant. The defendant and others have executed the Hundi in favour of the plaintiff wherein the liability of the plaintiff has been admitted by the defendant. That the defendant in turn issued three cheques to the plaintiff amounting to total Rupees Thirty lacs Twenty Thousand and the said cheques bears Nos. 152971, 152972 and 152973, which were payable at State Bank of India, Anantnag. But on presenting the said cheques before the concerned Bank for encashment all the three cheques were bounced and dishonoured by the concerned Bank. That the defendant had issued the cheques for the discharge of the liability and the cheques so issued were dishonoured within the territorial limits of this court, the cause of action as such has accrued to the plaintiff within the jurisdiction of this court and the court is competent to hear, try and decide the matter..." 5. The course adopted by the learned trial court, according to the petitioner herein, is bad in law while having a view of the contentions raised in the petition:- The conditional order impugned is bad in law because it amounts to granting of the suit to the extent of 30%, as such the impugned order is liable to set aside so far as the impugned condition is concerned. Further it is pleaded in the petition that though the leave has been granted to the petitioner herein to defend the suit but condition imposed to the extent of depositing of 30% of the suit amount is unwarranted and uncalled for because the leave ought to have been granted without imposing any condition. Further it is pleaded in the petition that though the leave has been granted to the petitioner herein to defend the suit but condition imposed to the extent of depositing of 30% of the suit amount is unwarranted and uncalled for because the leave ought to have been granted without imposing any condition. The court below has travelled beyond the scope of discretion given to it under the provisions of Order 37 CPC, as such on this ground alone the impugned condition imposed vide impugned order is liable to be set aside. Furthermore, it is stated that the petitioner has raised triable issued in the application seeking leave to defend the suit, therefore, the court below should have granted unconditional leave. That the suit is not maintainable on the ground of limitation also as the suit of recovery of money payable can be laid within a period of six months as per first schedule to the Limitation Act, which clearly gives description of suit and period of limitation. The respondent has not only played fraud by mutilating the cheque date but has tried to cheat the petitioner. That the respondent could have been asked to produce the original cheques for its proper examination by the trial court. The important plea raised in the instant petition is that the Presiding Officer of the court of Principal District Judge, Anantnag had already applied for voluntary retirement about one month before passing of the impugned order, which request came to be accepted by the competent authority(High Court) and in the first instance vide order No. 1370 dated 07.02.2019, the Presiding Officer was attached with the High Court. As such, once the Presiding Officer was attached on 07.02.2019, he was ceased to function as Principal District Judge, Anantnag on 08.02.2019, when the impugned order was passed. That the respondent herein had played a fraud with the court and had sought decree on the basis of mutilated cheques dated 8.8.2016 while as the original cheque date is 05.03.2011, which the petitioner has never ever issued in favour of the respondent as there was no business transaction between them as all the business transactions had ceased to exist in the year 2010-11. 6. Mr. 6. Mr. Dar, learned counsel for the petitioner while being heard also brought on record copy of the High Court order No. 1370 dated 07.02.2019, where-under learned Principal District Judge, Anantnag had been transferred and had to report in the High Court in view of his intention to voluntarily demit the office. Of-late a copy of Government Order bearing No. 1071-LD(A) of 2019 dated 06.03.2019 has been produced, in terms whereof sanction has been accorded to the acceptance of voluntary retirement of the said officer (Principal District Judge) with effect from 04.01.2019. 7. Learned counsel has made reference to the following judgments in order to substantiate the contentions raised that the course adopted by the learned trial court is bad in law:- (i) Rajasthan High Court, Modi Ram & Anr. Vs. Smt. Sugan Bai (19.05.2004); (ii) (2009) 5 SCC 162 Nawab Shaqafath Ali Khan & Ors. Vs. Nawab Imdad Jah Bahadur & Ors.; (iii) (2015) 10 SCC 521 State Bank of Hyderabad Vs. Rabo Bank; (iv) High Court of Andhra Pradesh at Hyderabad, T. Sukender Reddy Vs. M. Surender Reddy (27.04.1998); (v) AIR 1992 Gujarat 115 Jashbhai Motibhar Patel Vs. Hasmukhbhai Ravjibhai Patel; (vi) 2010 (1) SLJ 187 Ghulam Mohd. Akhoon Vs. Masood ul Hassan Khan; (vii) 2011 (1) JKJ 649 (HC), Darbari Lai & Ors. Vs. Madan Lal & Ors.; and (viii) Ikhlaq Ahmad Wani Vs. Ghulam Nabi Pandith in CFA No. 33/2018 (12.12.2018) (High Court of J & K). 8. The plea raised in terms of the application which was filed before the learned trial court for grant of leave clearly suggested to the understanding of a prudent person that the petitioner herein has substantial defence, according to learned counsel for the petitioner. The condition put-forth regarding the deposition of 30% of the suit amount was improper. Power of Supervisory jurisdiction in terms of Section 104 of the Constitution of Jammu and Kashmir/Revisory jurisdiction under Section 115 of CPC, has to be exercised, thus, to advance the cause of justice, is being pleaded. 9. Mr. Arif, learned counsel for the respondent at the admission stage has taken preliminary objection to the maintainability of the instant petition in view of the proviso to Section 115 of CPC and submits that the petition is liable for dismissal. 9. Mr. Arif, learned counsel for the respondent at the admission stage has taken preliminary objection to the maintainability of the instant petition in view of the proviso to Section 115 of CPC and submits that the petition is liable for dismissal. His further submission is that the petitioner herein has only pleaded that there was some business transaction between the petitioner and the respondent, but had not elaborated as to what business transaction was between them. He has taken reliance on the judgment rendered by the Hon'ble Supreme Court in IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd. reported in (2017) 1 SCC 568 . 10. Considered the rival arguments. 11. Having regard to the plea raised as to the maintainability of the revision petition in terms of proviso to Section 115 CPC, it requires to be considered at the very prelude. Proviso provides as:- "115.....Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings." 12. The leave if granted unconditionally admittedly would not have disposed of the suit in favour of the petitioner. Mischief of Section is, thus, applicable. Revision petition would not be maintainable, so the principle of law referred to by Mr. Dar laid in Darbari Lal's case would not be attracted herein as the facts and circumstances of two cases are clearly distinguishable. In Darbari Lal's case, learned trial court had passed the order whereby the defendant was restrained from raising construction and the appellate court had dismissed the appeal filed on behalf of the aggrieved party finding no merit in it. The question found for determination was whether the bar under Section 115 CPC for entertaining revision petition against the appellate court's order in such circumstances, would be attracted. 13. The other judgments referred to by Mr. The question found for determination was whether the bar under Section 115 CPC for entertaining revision petition against the appellate court's order in such circumstances, would be attracted. 13. The other judgments referred to by Mr. Dar are with regard to exercise of discretion in terms of Order 37 of CPC and may not have to be discussed in the light of argument raised about the propriety of the proceeding with trial by then Principal District Judge, Anantnag, after having expressed his willingness to demit the office by voluntary retirement and in dispensation of notice required to be served. Copy of the Government order No. 1071-LD(A) of 2019 dated 06.03.2019 referred above shows that the voluntary retirement of the said Judicial Officer has been given effect from 04.01.2019. The said order is vividly retrospective in nature. It does not indicate as to how the business whatever transacted by the learned Principal District Judge till his retirement has to be dealt with if his retirement operates from 04.01.2019. This may have to be looked into at the administrative level by the High Court itself in consultation with the Government and appropriate remedial measures taken for validating the business and functions performed in exercise of statutory powers by the said learned Principal District Judge. Same is required to be brought to the notice of Lord Chief Justice through Registrar General, High Court of Jammu and Kashmir. 14. The contention raised, however, on behalf of the petitioner that since the learned Judicial Officer had been transferred he ought not to have passed the impugned order on the next day, does not appear to be forceful and the impugned order cannot be termed to be bad on that count. 15. However, having regard to the above aspect of the case emerging due to the effect being given to voluntary retirement of the said Judicial Officer from 04.01.2019 vide Government order dated 06.03.2019, I am of the opinion that the power is required to be exercised in the instant case under Section 104 of the Constitution of Jammu and Kashmir for treating the impugned order as non-est and directing the learned Principal District Judge, Anantnag to pass the orders afresh in the light of the facts and circumstances, contentions raised in terms of the application, objections thereto and the principles of law applicable. 16. 16. Accordingly, in exercise of power conferred under Section 104 of the Constitution of J & K, interference is warranted, as such, order impugned dated 08.02.2019 is set aside and the case is remitted back to the court of learned Principal District Judge, Anantnag for passing appropriate orders after hearing the parties. The order passed herein, however, shall not be treated any expression of opinion on merits of the case or regarding the scope for grant or withholding the relief in terms of the Order 37 of CPC by the learned trial court. 17. Learned Registrar General, be requested to solicit the attention of Lord Chief Justice about the steps needed to be taken for validating the business transacted by the then Principal District Judge from 04.01.2019 till he actually demitted the office. 18. Disposed of as above.