ORDER : 1. Conditional leave has been granted on 07.09.2017, in favour of the petitioner herein by the learned trial Court on an application filed under Order 37, Rule (3), sub-rule (5) of CPC. The learned trial Court had found the ground put forth for grant of leave to be illusory and sham and accordingly the petitioner has been directed to deposit an amount of Rs. 6,20,000/- in the Court or in the alternative deposit cash security. 2. A review petition was filed before said Court which has been dismissed in terms of order dated 23.01.2019, while opining no ground had been made out for the same. The approach of the learned Court is stated being not covered by the law and virtually according to the petitioner the defendant has been incapacitated to contest the suit. For this, Revisory jurisdiction under Section 115, C.P.C. and in the alternative Section 104, Constitution of Jammu and Kashmir is invoked. 3. A copy of the plaint has been brought on record by the learned counsel when he was being heard. It indicates a suit has been filed for an amount of Rs. 6,20,000/- by the respondent before trial Court on the count that: (i) The plaintiff is a Managing partner of the Firm Northern Motor Corporation dealing in supply of motor parts and accessories. (ii) That the defendant approached the plaintiff for the supply of motor parts and accessories worth Rs. 6,20,000/- (Rupees six lacs and twenty thousands). (iii) That on 07.07.2015, the defendant issued a payees account cheque bearing No. 680724, SB Account No. 45943 for an amount of Rs. 6,20,000/- (Rupees six lacs and twenty thousands) payable from J&K Bank Branch Safa Kadal, Srinagar. (iv) The plaintiff thereafter presented the said cheque bearing No. 680724 amounting to Rs. 6,20,000/- (Rupees six lacs and twenty thousands) to J&K Bank Branch, Safa Kadal, Srinagar on 17.08.2015, but the cheque was dishonored for the reason of insufficient funds. (v) That the plaintiff requested the defendant to make the payment, but did not pay any heed and even on 25.08.2015, served a legal notice requesting the defendant to make the payment of Rs. 6,20,000/- to the plaintiff within fifteen days from the receipt of the said notice, but without any result and in turn resorted to police action against the fact and law. 4. 6,20,000/- to the plaintiff within fifteen days from the receipt of the said notice, but without any result and in turn resorted to police action against the fact and law. 4. The version put forth by the petitioner herein for grant of leave in the application which has been allowed by the trial Court with the condition referred above is: (i) That cheque was obtained by fraud from the plaintiff. (ii) That defendant was working as Salesman cum partner in the Firm M/s. Asian Car Choice for the last ten years and during his tenure as Salesman/partner an account, was opened by the Principal Partner Noor Mohammad Challoo with J&K Bank Ltd. Branch, Safa Kadal, in the name of defendant, but the defendant had entrusted the cheque book to one Noor Mohammad who was maintaining the accounts of the firm. (iii) Sometime back the defendant has retired from the Firm, however, before his retirement all the accounts were settled and he paid an amount of Rs. 4,53,000/- to the Noor Mohammad against proper receipt, but the said Nooor Mohammad has taken undue advantage of the trust and confidence which the defendant had reposed in him and fraudulently has retained one cheque leaf from the cheque book and issued the said cheque in the name of his son, i.e., plaintiff Mohammad Ayoub Challoo for an amount of Rs. 6,20,000/-. (iv) The defendant has not received any supplies from the Firm. The plaintiff has tried to encash the cheque by fraudulent means and when defendant came to know about the fraud perpetuated by plaintiff and Noor Mohammad, he lodged a complaint with the police station concerned and the police after investigating the matter have found that the cheque has been obtained by fraudulent means and action has been taken against the plaintiff and the said Noor Mohammad. 5. It is required to be noted that before filing the suit a notice had been issued as is referred in the plaint. A Photostat copy of the police report has been annexed with the petition as annexure III, addressed to CJM, Srinagar, by the police concerned. On being asked as to what had been the outcome of the complaint in which the police report was submitted, Mr. Bhat, learned counsel for the petitioner stated that the proceedings have been consigned to records and no further action has been taken on it. On being asked as to what had been the outcome of the complaint in which the police report was submitted, Mr. Bhat, learned counsel for the petitioner stated that the proceedings have been consigned to records and no further action has been taken on it. In this regard he has placed on record an affidavit, wherein it has been stated that the learned Chief Judicial Magistrate, Srinagar, directed the police to submit report in the context of application and accordingly report was submitted by police post, Bagiyas Chattabal, Srinagar and after submission of said report, the application alongwith report has been consigned to records without any further orders. 6. In order to lend support to his argument that the leave ought to have been granted unconditionally, learned counsel has referred to various judgments including the judgment State Bank of Hyderabad vs. Rabo Bank, (2015) 10 SCC 521 . It is also his plea that the bill of exchange which in the instant case is cheque referred to in the plaint was not legally enforceable in view of the fact that it had lost its validity before filing suit, even as per admission of the plaintiff. No bank could accept it for encashment according to him in the given circumstances. The learned counsel has also referred to Order 37, Rule 3, sub-rule (5) of CPC, which according to him clearly indicated that leave to defend was not to refused unless Court was satisfied that the facts disclosed by the defendant could not be treated as "substantial defence" or the defence intended to be raised was frivolous or vexatious. The plea raised in terms of application which was filed before the learned trial Court for grant of leave clearly suggested to the understanding of a prudent person that petitioner herein has substantial defence. The condition put forth regarding the deposition of an amount or in the alternative cash security was improper. Power of Supervisory jurisdiction in terms of Section 104 of Constitution of Jammu and Kashmir/Revisory jurisdiction under Section 115, CPC, has to be exercised thus to advance the cause of justice. 7. Considered the contentions raised on behalf of the learned counsel for the petitioner. On perusal of record, it appears that the learned trial Court has granted conditional leave in view of the fact that defence put forth in it, opinion was illusory and sham. 8. 7. Considered the contentions raised on behalf of the learned counsel for the petitioner. On perusal of record, it appears that the learned trial Court has granted conditional leave in view of the fact that defence put forth in it, opinion was illusory and sham. 8. In Milkyram (India) Pvt. Ltd. vs. Chamamlal Bros, AIR 1965 SC 1698 , a four Judge Bench of the Hon'ble Apex Court has laid down the principle of law with regard to grant of leave with the following observations: "6. It may be mentioned that this Court relied upon the decision in Jacobs vs. Booth's Distillery Co. (1901) 85 LT 262, in which the House of Lords held that whenever a defence raises a triable issue leave must be given and also referred to two subsequent decisions, where it was held that when such is the case leave must be given unconditionally. In this connection we may refer to the following observation of Devlin L.J. in Field Rank Ltd. vs. Stein, (1961) 3 All ER 681 at pp. 682-683: "The broad principle, which is founded on (1901) 85 LT 262, is summarized on p. 266 of the Annual Practice (1962 Edn.) in the following terms: "The principle on which the Court acts is that where the defendant can show by affidavit that there is a bona-fide triable issue, he is to be allowed to defend as to that issue without condition. If that principle were mandatory, then the concession by counsel for the plaintiffs that there is here a triable issue would mean at once that the appeal ought to be allowed, but counsel for the plaintiffs has drawn our attention to some comments that have been made on (1901) 85 LT 262. They will be found at pp. 251 and 267 of the Annual Practice, 1962. They will be found at pp. 251 and 267 of the Annual Practice, 1962. It is suggested (see p. 251) that possibly the case, if it is closely examined does not go as far as it has hitherto been thought to go and on the top of p. 267 the learned editors of the Annual Practice have this note: "The condition of payment into Court, or giving security, is now-a-days more often imposed than formerly, and not only where the defendant consents but also where there is a good ground in the evidence for believing that the defence set up is a sham defence and the matter is prepared very nearly to give judgment for the plaintiff." It is worth nothing also that in Lloyd's Banking Co. vs. Ogle, (1876) 1 Ex. D. 262, at p. 264 in a dictum which was said to have been overruled or qualified by (1901) 85 LT. 262 Bramwell B. had said that: "......those conditions (of bringing money into Court or giving security) should only be applied when there is something suspicious in the defendant's mode of presenting his case. I should be very glad to see some relaxation of the strict rule in (1901) 85 LT 262. I think that any Judge who has sat in chambers in B.S.C.O. 14 summonses has had the experience of a case in which, although he cannot say for certain that there is not a triable issue, nevertheless he is left with the real doubt about the defendant's good faith, and would like to protect the plaintiff, especially if there is not grave hardship on the defendant in being made to pay money into Court. I should be prepared to accept that there has been a tendency in the last few years to use this condition more often than it has been used in the past, and I think that is good tendency." These observations as well as some observations of Chagla, C.J. in Rawalpandi Theatres Private Ltd. vs. M/s. Film Group Bombay, (1958) 60 Bom LR 1378 at p. 1374, may well be borne in mind by the Court sitting in appeal upon the order of the trial Judge granting conditional leave to defend. It is indeed not easy to say in many cases whether the defences is a genuine one or not and, therefore, it should be left to the discretion of the trial Judge who has experiences of such matters both at the bar and the Bench to form his own tentative conclusion about the quality or nature of the defence and determine the conditions upon which leave to defend may be granted. If the Judge is of opinion that the case raised a triable issue, then leave should ordinarily be granted unconditionally. On the other hand, if he is of opinion that the defence raised is frivolous, or false, or sham, he should refuse leave to defend altogether. Unfortunately, however, the majority of cases cannot be dealt with in a clear cut way like this and the Judge may entertain a genuine doubt on the question as to whether the defence is genuine or sham or in other words whether it raises a triable issue or not. It is to meet such cases that the High Court contemplates that even in cases where an apparently triable issue is raised the Judge may impose conditions in granting leave to defend. Thus this is a matter in the discretion of the trial Judge and in dealing with it, he ought to exercise his discretion judiciously. Care must be taken to see that the object of the rule to assist the expeditious disposal of commercial causes to which the order applies, is not defeated. Care must also be taken to see that real and genuine triable issues are not shut out by unduly severe orders as to deposit. In a matter of this kind, it would be undesirable and inexpedient to lay down any rule of general application." 9. After taking note of various earlier judgments, in IDBI Trusteeship Services Ltd. vs. Hubtown Ltd. (2017) 1 SCC 568 , their Lordships made following observations: (i) Whether the respondent-defendant had raised substantial defence to the claim made in the suit and was entitled to leave to defend and if so on what conditions? (ii) Whether the judgment in Mechelec, (1976) 4 SCC 687 , continues to be the law even after amendment of Order 37 in 1976. In this matter, a suit had been filed by the petitioner to enforce rights that had arisen out of a Corporate Guarantee executed by the respondent-defendant. (ii) Whether the judgment in Mechelec, (1976) 4 SCC 687 , continues to be the law even after amendment of Order 37 in 1976. In this matter, a suit had been filed by the petitioner to enforce rights that had arisen out of a Corporate Guarantee executed by the respondent-defendant. Their Lordships referred at the very facts as pleaded in the plaint and subsequent development thereon. After having discussion on the grounds put forth, the learned single Judge, therefore, had come to the conclusion that unconditional leave was required to be granted to the defendants to defend the case which was accordingly granted. After having noted the facts as pleaded by the parties and legal principles applicable, their lordships concluded that it can be said that defendant has raised a substantial defence to the claim made in the suit. Arguably at the highest, as held by the learned single Judge, even if a triable issue may be said to have arises on the application of FEMA etc, their lordships expressed doubt about the defendant's good faith and genuineness of triable issue raised. The defendant was stated appearing to be in the realm of being plausible but improbable. The defendant was granted leave subject to deposition of an amount indicated therein, on giving security to the satisfaction of Prothonotary and senior Master, Bombay High Court. Some of the pertinent observations in this regard made by their lordships from the judgment are as: However, there are two judgments of the Hon'ble Apex Court which directly deal with the amendment made to Order 37 and the effect thereof on the ratio contained in Mechelec case: 15.1. In Defiance Knitting Industries (P) Ltd. vs. Jay Arts, (2006) 8 SCC 25 , this Court after setting out the amended Orders 37 and after referring to Mechelec case, laid down the following principles: 13. While giving leave to defend the suit the Court shall observe the following principles: (a) If the Court is of the opinion that the case raises a triable issue then leave to defend should ordinarily be granted unconditionally. Milkhiram (India) (P) Ltd. vs. Chamanlal Bros, AIR 1965 SC 1698 . The question whether the defence raises a triable issue or not has to be ascertained by the Court from the pleadings before it and the affidavits of parties. Milkhiram (India) (P) Ltd. vs. Chamanlal Bros, AIR 1965 SC 1698 . The question whether the defence raises a triable issue or not has to be ascertained by the Court from the pleadings before it and the affidavits of parties. (b) If 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 it may refuse leave to defend altogether. Kiramoyee Dasi vs. J. Chatterjee, AIR 1949 Cal. 479 (noted and approved in Mechelec case). (c) In cases where the Court entertains a genuine doubt on the question as to whether the defence is genuine or sham or whether it raises a triable issue or not, the Court may impose conditions in granting leave to defend." 15.2. In Southern Sales & Services vs. Sauermilch Design & Handels Gmb H. AIR 2009 SC 320 this Court was squarely asked to render its discretion on whether the judgment in Mechelec case was to a large extent rendered ineffective in view of the amended Order 37. The Court found: 15. Having considered the submissions made on behalf of the respective parties and the decisions cited, there appears to be force in Mr. Sharma's submissions regarding the object intended to be achieved by the introduction of sub-rules (4), (5) and (6) in Rule 3, Order 37 of the Code. Where in the un-amended provisions of Rule 3, there was no compulsion for making any deposit as a condition precedent to grant of leave to defend a suit by virtue of the second proviso to sub-rule (5), the said provision was altered to the extent that the deposit of any admitted amount is now a condition precedent for grant of leave to defend a suit filed under Order 37 of the Code. A distinction has been made in respect of any part of the claim, which is admitted. The second proviso to sub-rule (5) of Rule 3 makes it very clear that leave to defend a suit shall not be granted unless the amount as admitted to be due by the defendant is deposited in Court." 16. It is thus clear that Order 37 has suffered a change in 1979 and that change has made a difference in the law laid down. It is thus clear that Order 37 has suffered a change in 1979 and that change has made a difference in the law laid down. First and foremost, it is important to remember that Milkhiram case is a direct authority on the amended Order 37 provision, as the amended provision in Order 37, Rule 3 is the same as the Bombay amendment which this Court was considering in the aforesaid judgment. We must hasten to add that the two provisos to sub-rule (3) were not, however, there in the Bombay amendment. These are new, and the effect to be given to them in something that we will have to decide. The position in law now is that the trial Judge is vested with a discretion which has to result injustice being done on the facts of each case. But justice, like equality, another cardinal constitutional value, on the one hand, and arbitrariness on the other, are born enemies. The discretion that a judge exercises under Order 37 to refuse leave to defend or to grant conditional or unconditional leave to defend is a discretion akin to Josep's multi-coloured coat, a large number of baffling alternative present themselves. The life of the law not being logic but the experience of the trial Judge is what comes to the rescue in these cases: but at the same time informed by guidelines or principles that we propose to lay down to obviate exercise of judicial discretion in an arbitrary manner. At one end of the spectrum is unconditional leave to defend, granted in all cases which present a substantial defence, At the other end of the spectrum are frivolous or vexatious defences leading to refusal of leave to defend. In between these two extremes are various kinds of defences raised which yield conditional leave to defend in most cases. It is these defences that have to be guided by broad principles which are ultimately applied by the trial Judge so that justice is done on the facts of each given case. 17. Accordingly, the principles stated in para 8 of Mechelec case will not stand superseded, given the amendment of Order 37. It is these defences that have to be guided by broad principles which are ultimately applied by the trial Judge so that justice is done on the facts of each given case. 17. Accordingly, the principles stated in para 8 of Mechelec case will not stand superseded, given the amendment of Order 37. Rule 3 and the binding decision of four Judges in Milkhiram case as follows: 17.1 If the defendant satisfies the Court the 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. 17.2 If the defendant raised 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. 17.3 Even if the defendant raised 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. 17.4 If the defendant raised a defence which is plausible but improbable, the trial Judge may impose conditions as to tie 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. 17.5 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. 17.5 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. 17.6 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 defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. 10. Their Lordships in Milkiram's case AIR 1965 SC 1698 , also felt that at times it is difficult to assess whether the defence put forth is substantial one. The grant or refusal of leave or grant of conditional leave is to be left to discretion of trial Judge, who is expected to have attained proper skill and same having stood sharpened by practical experience over years as a Judge or may be even at bar. Want of bona-fides has generally impelled the Court to withhold its assistance to grant leave. In the instant case too, same appears to have been guiding principle in declining unconditional leave. 11. The plea about the supply of motor parts taken by the respondent-plaintiff in the suit is clearly denied by the petitioner herein. The circumstances in which according to him the cheque has come in the hands of respondent have been noted above. It is noted herein supra that the Court in which according to the petitioner herein report of inquiry was submitted by the police has not taken any cognizance in the matter, but has consigned the complaint to records as stated above. The Magistrate if on receipt of the report of inquiry would have taken cognizance on it or otherwise opined that there was prima-facie force in the allegations levelled about the cheating, fraud, forgery etc, same would have strengthened the case of petitioner herein for grant of leave to defend the case unconditionally. The defence so put forth could be thus not only treated plausible but also probable. It could tilt balance in favour of petitioner and a case for interference could be opined to have been made out. 12. The defence so put forth could be thus not only treated plausible but also probable. It could tilt balance in favour of petitioner and a case for interference could be opined to have been made out. 12. Their Lordships of Hon'ble Apex Court in Waryam Singh and Another vs. Amarnath and Another, AIR 1954 SC 215 , have referred to the observations made by Harries C.J. in Dalmia Jain Airways Ltd. vs. Sukumar Mukherjee, AIR 1951 Cal. 193 , that the power vested with the High Court in terms of Article 227 of the Constitution of India is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within bounds of their authority and not for correcting mere errors. 13. In Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil, (2010) 8 SCC 329 , the Hon'ble Apex Court while referring to the case of Laxmikant Revchand Bhojwani vs. Pratapsingh Mohansingh Pardeshi, (1995) 6 SCC 576 , reminded the High Courts that the power cannot be assumed in terms of Article 227 as an unlimited prerogative to correct all species of hardships of wrong decision. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principle of law and justice. Their Lordships also remarked that the jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. It has been also the observation of Their Lordships that the High Court cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. 14. The correctness of impugned order in no case can be examined in exercise of Revisory jurisdiction in view of proviso to Section 115, CPC. Supervisory power under Section 104 of Constitution of Jammu and Kashmir, too cannot be exercised in the facts of instant case. No ground for interference is made out. Petition is held liable for dismissal and is, accordingly, dismissed.