Jozi Bashir Ashawari (Dr.) vs Irshad Ahmad Kuchay

Leave to defend granted unconditionally in terms of Order 37, Rule 3(5) CPC is under challenge.

Leave to defend granted is claimed to be based particularly on allegations contained in FIR lodged on 14.12.2004 when cheques has been

issued on 07.03.2005, the trial court, as such, has not applied its mind, therefore, order impugned has resulted in miscarriage of justice.

It is contended that no plausible defence was available to the respondent (defendant) therefore, suit should have been decreed which would

advance the object of instituting the summary suit under Order 37 CPC.

Appearing counsel for respondent would contend that neither there is any jurisdictional error nor improper exercise of jurisdiction. Furthermore,

no material irregularity is forthcoming which would cause miscarriage of justice, therefore, the revision is not competent. Learned trial court while

appreciating the bona fide contentions granted the requisite leave. In support of the contentions relied on the judgment reported in AIR 1977 SC

577.

Considered.

What emerges from the perusal of the record is that the respondent has issued two cheques bearing Nos.0164813 and 0164814 dated

07.03.2005 for an amount of Rs. 3,00,000/ (three lacs) each drawn on 'Union Bank of India' but were returned unpaid with the memo mentioning

payment stopped by the drawer.

Petitioner filed two suits captioned 'Dr. Jozi Bashir Ashawari vs. Irshad Ahmed Kuchay' one bearing Suit No. 19 based on Cheque No.

0164814 and another suit bearing No. 20 based on Cheque No. 0164813 under Order 37 of the Code of Civil Procedure. In both the suits after

following procedure as prescribed under Order 37 CPC respondent (defendant) sought leave to defend. Grounds projected for grant of leave

would suggest that the parties were close friends and the respondent used to give financial support to the petitioner and even asking the petitioner

to reconcile with her husband with whom she has strained relations but she wanted to marry with the respondent. It is further contended that the

respondent has beared various expenses of the petitioner as detailed in the application for leave to defend. Finally, respondent demanded amount

which petitioner owed to the respondent and in this connection once they had met to settle the accounts and in the course of settlement of

accounts, relatives of the respondent attacked the petitioner consequent thereof petitioner has lodged FIR in Police Station, Rajbagh, Srinagar

wherein she has mentioned that she was settling the accounts when brother, sister and brother in law of the respondent entered the house and

injured her.

Respondent would further contend that the outstanding amounts were not be paid back instead petitioner said that she is going to sell the land

measuring 01 kanal and 04 marlas situated at Peer Bagh, then it was decided that the same shall be purchased by the respondent against sale

consideration of Rs. 11.00 lacs. In the process, respondent is stated to have issued two post dated cheques but subsequently came to know that

the land in question was under acquisition of Railway Department and petitioner has received the payment also. This way respondent was cheated

and he in turn intimated the Bank to stop the payment of aforesaid cheques.

Learned trial court after noticing all these details has come to a positive conclusion that the facts disclosed constitute sufficient ground for grant

of leave to defend so granted unconditionally.

The contention of the appearing counsel for the petitioner is that the learned trial court has formed opinion on the basis of the allegations

contained in FIR. From the perusal of the records it is found that while noticing the facts projected in the application for leave to defend allegation

contained in FIR supported the same, so leave granted is not solely on the basis of the allegations mentioned therein the FIR.

Learned trial court has correctly quoted the six principles and thereafter has come to the conclusion that leave to defend is warranted. In the

given facts and circumstances, interference is not warranted while invoking powers under Section 115 CPC.

Similar position has been dealt with by the Apex Court in the judgment titled M/S Mechalec Engineers and Manufacturers vs. M/s Basic

Equipment Corporation, reported in AIR 1977 SC 577, wherein it has been held the exercise of discretion in granting unconditional leave to

defend on perusal appears to be reasonable. In this connection, it is quite relevant to quote Para 7 of the said judgment.

We need not dilate on the well established principles repeatedly laid down by this Court which govern jurisdiction of the High Courts under

Section 115 CPC. We think that these principles were ignored by the learned Judge of the High Court in interfering with the discretionary order

after a very detailed discussion of the facts of the case by the learned Judge of the High Court who had differed on a pure question of fact whether

the defences could be honest and bona fide. Any decision on such a question, even before evidence has been led by the two sides, is generally

hazardous. We do not think that it is fair to pronounce a categorical opinion on such a matter before the evidence of the parties is taken so that its

effects could be examined. In the case before us, the defendant had denied, interalia, liability to pay anything to the plaintiff for an alleged supply of

goods. It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the

exercise of discretion by the trial court to grant leave unconditionally may be questioned. In the judgment of the High Court we are unable to find a

ground of interference covered by Section 115 CPC

While following what has been laid down, learned trial court is found to have exercised discretion well within the confines of law and has made

proper exercise of jurisdiction, no material irregularity is noticed, therefore, no interference is warranted.

Since in two suits bearing suit No.19 and 20, similar order has been passed except for cheque number, therefore, this order will govern both

the two revision petitions i.e. Revision Petition No.11/2008 and Revision Petition No. 12/2008. Copy of the order alongwith trial court record of

Suit No. 19 and also copy of order alongwith trial court record of Suit No.20 be sent to the trial court for proceedings further. Parties to appear

before the trial court on 04.04.2009.

Both the two revision petitions dismissed alongwith connected CMPs.