Jammu & Kashmir High Court – Srinagar Bench
Farukh Jehanzeb vs Muzaffar Ali Kapra And Anr on 1 March, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No 36.
Suppl.
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
RFA 91/2024 CM(7580/2024)
FARUKH JEHANZEB ...Petitioner(s)/appellant(s)
Through: Mr. Shuja-ul-haq Advocate.
Vs.
MUZAFFAR ALI KAPRA AND ANR ...Respondent(s)
Through: Mr. Shakir Haqani, Advocate.
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
01.03.2025
1. In the instant appeal, the appellant herein has challenged judgment
and decree dated 21.08.2024 passed by the Court of 4 th Additional District
Judge, Srinagar, (for short, the Trial Court) in case titled as “Muzaffar Ali
Kapra Vs. Zeb Farukhjehan Bhat and Anr.”
2. Facts giving rise to the filing of the instant appeal would reveal that
the respondent 1 herein filed a suit under Order 37 CPC impleading the
appellant herein as defendant 1 and proforma respondent 2 as defendant 2.
The suit was filed on the premise that the plaintiff, respondent 1 herein,
being a businessmen by profession run under the name and style of M/S
M.K. Brothers, having its principle place of business at Khankah-e-Molla,
Srinagar, approached the defendants in the suit for purchase of a piece of
land situated at Awantipora, Pulwama, as the said defendants as partners
were jointly dealing with the business of sale and purchase of immovable
properties and that the defendant 2, proforma respondent 2 herein, showed
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him a piece of land at Awantipora, Pulwama, which the plaintiff agreed to
buy whereupon the plaintiff paid an amount of Rs. 10.00 lacs as token
money thereof towards the defendants, however, despite receiving the said
token money, the defendants did not sell the land in question to the plaintiff
and instead avoided him on one pretext or the other and that subsequently,
the plaintiff came to know that the land shown to him by the defendants
does not belong to them and that the defendants in fact had cheated him and
deceitfully extracted Rs. 10.00 lacs from him, whereupon, the plaintiff
approached the defendants for return of the token money of Rs. 10.00 lacs,
as a consequence whereof, the defendant 1, appellant herein, issued a
cheque bearing No. 000301 dated 17.04.2021 amounting to Rs. 10.00 lacs,
drawn at ICIC Bank, Branch Unit Pampore, which cheque, however, upon
its presentation before his banker, Jammu and Kashmir Bank, Branch Unit
Nowhatta, Srinagar, got bounced and came to be returned back with a memo
containing an endorsement of “insufficient funds” issued by the Bank,
whereafter, the plaintiff approached the defendants and requested them for
payment of the amount covered by the cheque, but the defendants avoided
him on one pretext or the other and after waiting for some time upon their
assurance, the defendants ultimately failed to pay the amount in question to
the plaintiff, the plaintiff whereafter maintained the suit before the Trial
Court.
3. The Trial Court upon entertaining the suit under the Provisions of
Order 37 of the Code of Civil Procedure summoned the defendants
whereupon both the defendants appeared and subsequently filed
independent applications seeking leave to defend the suit.
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4. The defendant 1 in the suit, being appellant herein, in the said
application, pleaded that the allegations leveled against him by the plaintiff
have no roots and that the cheque in question was never issued by him in
favour of the plaintiff and that in fact the defendant 2 is his close friend, and
on his request, the cheque in question came to be furnished by him to the
said defendant 2, as the Bank account of the defendant 2 was not in
operation and that Defendant 2 had requested him that he will get the
account operational by some amount by depositing the cheque, while stating
further, he, the defendant 1, is not related to the plaintiff by any means or
business, and that the plaintiff is, in fact, harassing him for his personal
reasons, and consequently on the basis of said pleas sort an unconditional
leave to defend the suit.
5. In the application seeking leave to defend filed by defendant 2,
proforma respondent 2 herein, it came to be stated that the plaintiff has
concealed material facts, as, in fact, the cheque in question stands issued by
defendant 1 and not by him, and that he has been unnecessarily arrayed as
party defendant in the suit by the plaintiff, and the plaintiff has completely
misled the court by false assertions, thus, the application needs to be
allowed for allowing the defendant 2 to defend the suit.
6. Before the Trial Court, both the applications filed by the defendants
came to be opposed by the plaintiff by filing objections thereto.
7. The Trial Court, upon considering the applications as also after
hearing the appearing counsel for the parties, opined that since the cheque in
question has been admitted to have been issued by defendant 1, though
claimed to have been issued by him to defendant 2, yet did not deny that it
bears his signature, and consequently, declined the grant of leave to the
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defendants in the suit, and in furtherance thereof, decreed the suit in favour
of the plaintiff in terms of the judgment and decree dated 21-08-2024.
8. The appellant herein being defendant 1 before the Trial Court in the
suit has maintained the instant appeal while throwing challenge to the
impugned judgment and decree almost on same and similar grounds which
have had been urged by the appellant before the Trial Court in the
application seeking leave to defend the suit. Besides, the appellant herein
has also contended in the appeal that the defense set up by him before the
Trial Court in the application seeking leave to defend was plausible and
credible, however, same has not been taken into consideration or cognizance
of by the Trial Court without any lawful justification and that the Trial
Court grossly erred while rejecting the application of the appellant for
seeking leave to defend the suit in breach of the law contained in Order 37,
passed the impugned judgment and decree, which suffers from vices of
judicial impropriety and unsoundness.
Heard learned counsel for the parties and perused the record.
9. Before proceeding to advert to the case set up by the appellant
herein, in the instant appeal against the impugned judgment and decree, a
brief reference to the provisions of Order 37 CPC as also law laid down by
the Apex Court in this regard would be advantageous and appropriate,
hereunder.
10. The provisions of Order 37 of the Code deal with Summary
Procedure declaring the Courts and Classes of Suits to which the Provisions
of Order 37 CPC would apply, besides providing that the said provisions
would apply to all Suits on Promissory Notes, Bills of Exchange, and
Hundis, even if they are made non-negotiable. The term “Promissory Note”
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has been defined in Section 4 of the Negotiable Instruments Act of 1881, sohas also been defined the Bill of Exchange. The term “Cheque” is also
defined under Section 6 of the Act of 1881 as follows: Section 6: “A
Cheque is a Bill of Exchange drawn on a specified Banker and not
expressed to be payable otherwise than on demand.”
11. Order 37, Rule 2 CPC lays down a procedure to be followed in the
summary suit contemplating that after the summons of the suit has been
issued to the defendant, the defendant must appear whereupon the plaintiff
will serve a summon for judgment upon the defendant, while providing
further, that the defendant is not entitled to defend the summary suit unless
he enters appearance as in default, the plaintiff will be entitled to a decree
which is executable forthwith.
Sub Rule (1) of Rule 2 of Order 37 CPC requires particulars to be
stated in the plaint in a summary suit, whereas Sub Rule (2) prescribes the
form of summons and Sub Rule (3) provides for consequences of non-
appearance of the defendant.
It is consistent view of the courts that the provisions of Order 37,
Rule 2 CPC are enabling in nature, vesting a choice in the plaintiff of taking
the advantage of summary procedure, if he intends to avail of such
procedure.
It has also been laid down by the courts that the object underlying
the Rule 2 of Order 37 CPC is to apprise the defendant that the suit has been
filed under Order 37 CPC as a summary suit, thus necessitating substantial
compliance with the provisions of the Rule.
12. Sub Rule (3) of Rule 2 of Order 37 CPC has used the
expressions/words “the allegations in the plaint shall be deemed to have
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been admitted” to mean that the court will accept the statement in the plaint
as correct and on that basis pass a decree in favour of the plaintiff.
It is the consistent view of the courts that the said words/expressions
appearing in Sub Rule (3) embody an exception to the fundamental and
basic principle of law that a plaintiff must prove the case with which he
comes to court and dispense with such proof in view of special nature of
document/s in Rule 1 of Order 27.
The Apex Court in case titled as “Ramkarandas Radhavallabh v.
Bhagwandas Dwarkadas” reported in A.I.R. 1965 SC 1144, in this regard
has held that the provisions of Sub Rule (3) of Rule (2) Order 27,
contemplates that the Court will accept the statement in the plaint as correct
and on those statements pass such decree as the plaintiff may in law be
entitled to.
13. Rule 3 of Order 37 CPC lays down a procedure for appearance of
defendant and consequence of non-appearance, while as Sub Rule (5) of
Rule 3 of Order 37 CPC confers discretionary power on the court to grant
leave to the defendant to defend the suit, it also provides that such leave
may be granted by court, unconditionally or conditionally, upon such terms
as may appear to be just and appropriate.
The Apex Court in case titled as Milkhiram (India) Private Ltd. and
Ors v. Chamanlal Bros, reported in A.I.R. 1965 SC 1698 has held that such
discretionary power entrusted upon the court must be exercised legally,
reasonably and on sound judicial principles in consonance with principles of
natural justice that form foundations of our legal system.
In UBS AG vs State Bank of Patiala reported in 2006 (5) SCC 416,
the Apex Court has also held that where the defendant appears and raises
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tribal issues, leave should be granted and whenever the defense raises a
tribal issue, unconditional leave should be granted otherwise the leave
would be illusory and that the test is to see whether the defense raises a real
issue and not a sham one, in the sense that if the facts alleged by the
defendant are established, there would be a good or even plausible defense
on those facts.
In case titled as “Mechelec Engineers and Manufacturers Vs. M/S
Basic Equipment Corporation” reported in 1976 for SCC 687, the Apex
Court has also held that the High Court should not interfere with the
discretionary order passed by the Trial Court in the matter of grant of leave
by entering into questions of fact, however, it is only in cases where the
defense is patently dishonest or so unreasonable that it could not reasonably
be expected to succeed, that exercise of discretion by the Trial Court to
grant leave unconditionally may be questioned and interfered with.
It has been further held by the Apex Court in case titled as M/S Fixity
Packaging Indus. P. Ltd. VS. Udyen Jain (HUF), reported in 2009-08 SCC
761, that the leave to defend should not be granted to the defendant on the
ground of sympathy or mercy if he has no defense.
14. Keeping in mind the aforesaid position of law and reverting back to
the case in hand, it has not been disputed by the defendant 1, appellant
herein, that the cheque stands issued by him and that same bears his
signatures. It has also not been disputed by the defendant 1, appellant
herein, that the name of the plaintiff entered in the cheque has been either
wrongfully, fraudulently, or by deceitful means. Instead what is being
denied by defendant 1, appellant herein, is that the cheque in fact stands
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provided by him to defendant 2, proforma respondent herein, being his close
friend in connection with the operation of his bank accounts.
15. Perusal of the record available on the file tends to show that the
plaintiff, respondent 1, herein specifically pleaded in the suit that the cheque
stands issued to him by the defendant 1, appellant herein, in order to pay
back him the amount of Rs. 10 lakhs paid to the defendants in connection
with the purchase of the piece of land at Awantipora after the defendants
failed to provide him the piece of land on sale. There has been no evidence
much less a documentary one placed on record by the defendants including
appellant herein in the application seeking leave to defend the suit except a
vague plea that the cheque in question in fact stands issued by him, the
defendant 1, appellant herein, to defendant 2, proforma respondent 2 herein.
No corroborative material has been placed on record with the application
seeking leave to defend by the defendant 1, appellant herein, to support such
plea. Thus, in presence of the aforesaid position, obtaining in the matter, the
Trial Court cannot be said to have committed any fault, error, or perversity
in declining leave to defend the suit to the defendant 1, appellant herein, and
consequently, to pass decree in favor of the plaintiff, respondent 1 herein, in
terms of the provisions of Order 37 CPC, in terms whereof if leave to
defend is declined, the passing of decree in favor of the plaintiff becomes
indispensable, and the plaintiff becomes entitled to such decree thereto. A
reference in this regard to the judgment of Apex Court passed in case titled
M/S V.K. Enterprises and Anr Vs. Shiva Steel, reported in 2019 SCC 256.
16. Viewed thus, for what has been observed, considered and analyzed
herein above, the impugned judgment and decree passed by the Trial Court
does not call for any interference.
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17. Resultantly, the appeal fails and is dismissed.
18. The amount stated to have been deposited before this court by the
appellant herein is directed to be returned back to the appellant along with
interest.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR
01.03.2025
Junaid
Whether the order is reportable? Yes.
Whether the order is speaking? Yes. Junaid Ayoub I attest to the accuracy and authenticity of this document
