Jammu & Kashmir High Court - Srinagar Bench
Mohammad Ashraf Sheikh vs Shabir Ahmad Mir on 21 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
S. No.121
Regular List
,,, HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM(M) No.272/2025
MOHAMMAD ASHRAF SHEIKH
.....Petitioner(s)
Through: Mr.S.R.Hussain, Advocate.
V/s
SHABIR AHMAD MIR
... ..Respondent(s)
Through : None
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
21.07.2025
1. The petitioner (defendant) through the medium of present petition has invoked the supervisory jurisdiction of this Court to assail order dated 08.07.2025 passed by the learned Principal District Judge, Kulgam (hereafter referred to as "the trial Court"), whereby conditional leave to defend the suit filed by the respondent/plaintiff has been granted in his favour.
2. It appears that the respondent/plaintiff has filed a suit under Order XXXVII of CPC against the petitioner/defendant before the trial court seeking recovery of an amount of Rs.5,36,900/- alongwith interest. Case of the plaintiff is that the defendant represented before him that he is running a reputed consultancy and that he would arrange employment for plaintiff's son in a multinational Company upon payment of Rs.6,50,000/-, which has to be kept as security deposit with the said Company and that the said amount would be refundable. It has been pleaded by the plaintiff that he after selling a patch of land arranged an amount of Rs.6,50,000/-and paid the same to the defendant.
3. He is stated to have approached the defendant a number of times for return of money when his son could not get an employment, but without any success. According to the plaintiff, he and his son were made to wait the whole day in Corporate Office of J&K Bank where the defendant was working. The plaintiff is stated to have approached two friends of the defendant so as to get back his money, whereafter the defendant agreed to repay the amount. Accordingly, he issued one cheque dated 23.02.2022 in favour of the plaintiff for an amount of Rs.51,000/- which was returned unpaid by the Bank. An amount of Rs.1,13,100/- is stated to have been paid by the defendant to the plaintiff, out of which Rs.73,100/- were paid by him into the bank account of plaintiff maintained with J&K Bank Branch Khudwani and the remaining amount of Rs.40,000/- was received by the plaintiff from the defendant in cash in two installments. First installment of Rs.30,000/- is stated to have been received by the plaintiff through the friends of the defendant, namely, Javaid Ahmad Qadiri and Mushtaq CM(M) No.272/2025 2|P a g e Ahmad Bhat and the balance amount of Rs.10,000/- was paid to him by the defendant personally.
4. According to the plaintiff the four other cheques, one dated 25.03.2022 for Rs.1,00,000/-, second dated 25.4.2022 for Rs.1,00,000/-, third dated 30.05.2022 for Rs.1,50,000/- and the fourth one dated 30.06.2022 for an amount of Rs.1,50,000 which were drawn by the defendant in favour of the plaintiff upon their presentation before the Bank were dishonoured. It has been further pleaded that legal notice of demand was served upon the defendant, whereafter, the defendant deposited another sum of Rs.73,100/- into the bank account of plaintiff on 23.01.2023. Thus, leaving the balance amount of Rs.5,36,900/-, which according to the plaintiff is due to him from the defendant.
5. The defendant/petitioner after entering his appearance before the trial Court moved an application for leave to defend, in which he took a stand that in the year 2022, two touts, viz., Javaid Ahmad Qadiri and Mushtaq Ahmad Bhat came into his contact and paid him an amount of Rs.1,20,000/- as gratification, so as to give them access to the higher officials of the J&K Bank. It has been pleaded that an FIR came to be registered against the former Chairman of J&K Bank by Anti Corruption Bureau with regard to illegal appointments, whereafter the touts, namely, Javaid Ahmad Qadiri and Mushtaq Ahmad Bhat started CM(M) No.272/2025 3|P a g e to blackmail the defendant and they demanded an amount of Rs.1,20,000/- back from him. They further demanded blank cheques from the defendant as security.
6. It is the case of the defendant that he started to liquidate amount of Rs.1,20,000/- to said Javaid Ahmad Qadiri and Mushtaq Ahmad Bhat to save his employment in the Bank and in this connection they asked him to deposit an amount of Rs.73,000/- in the account of the plaintiff, from whom the above named two touts had collected some bribe money. Thus the defendant liquidated the amount of Rs.1,30,000/= to the aforesaid two touts and transferred the money in the account of the plaintiff.
7. It is the case of the defendant that he came to know from the contents of the plaint that the two touts had taken forcibly four blank cheques mentioned in the plaint by blackmailing the defendant and these cheques were handed over by them to the plaintiff for repaying the bribe amount. According to the defendant he has neither received the amount as bribe from the plaintiff nor has he issued any cheque in his favour. The defendant has also pleaded that the plaintiff has not placed on record the original cheques and memos.
8. The learned trial Court, after analysing the facts emanating from the pleadings of the parties, came to the conclusion that the CM(M) No.272/2025 4|P a g e defence set up by the petitioner/defendant is illusory and moonshine and, therefore, only a conditional leave to defend the suit can be granted in his favour. Accordingly, by virtue of impugned order dated 08.07.2025, the learned trial Court has granted leave to defend the suit in favour of the defendant/ petitioner subject to deposition of Rs.3,00,000/- as security to be kept in FDR in the name of trial Court.
9. The petitioner has challenged the impugned order on the ground that once the learned trial Court had come to the conclusion that there is a defence available to the defendant, it was not open to the said Court to impose conditions for grant of leave to defend the suit. It has been further contended that the condition imposed by the learned trial Court for grant of leave to defend is harsh and it amounts to denial of leave to defend the suit, despite there being a plausible defence available to the defendant.
10. I have heard learned counsel for the petitioner and perused the impugned order, contents of the plaint and contents of application for leave to defend.
11. Sub Rule (5) of Rule 3 of Order XXXVII of CPC provides guidelines for grant or refusal of leave to defend the suit filed under Order XXXVII of CPC. The same reads as under:-
CM(M) No.272/2025 5|P a g e "Rule 3(5): The defendant may, at any time within ten days from 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 Judge 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."
12. From a perusal of the aforesaid provision it is clear that if the defendant discloses such facts as may be deemed sufficient to entitle him to defend the suit, leave to defend has to be granted to him unconditionally or upon such terms as may appear just to the Court. It further provides that leave to defend ordinarily cannot be refused unless the Court is satisfied that the facts disclosed 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 is also provided that where a part of claim is admitted by defendant to be due from him, leave to defend the suit cannot be granted unless the amount so admitted to be due is deposited by the defendant before the Court.
CM(M) No.272/2025 6|P a g e
13. The High Court of Calcutta in the case of Kiranmoyee Dassi vs. J.Chatterjee, 1945 SCC Online Calcutta 42, has laid down propositions with regard to the entitlement of the defendant to leave to defend the suit. The relevant excerpts of the said judgment are reproduced as under:-
"(1) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign the judgment and the defendant is entitled to unconditional leave to defend. (2) If the defendant raised a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (3) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence yet shows such a stage of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the court may in its discretion impose conditions as to the time or mode of trial but not as to payment into court or furnishing security.
(4) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.
(5) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence."
CM(M) No.272/2025 7|P a g e
14. The aforesaid proposition of law with regard to entitlement of a defendant to defend the suit has been consistently affirmed by the Supreme Court in a number of judgments, one of which has been delivered in the case of State Bank of Hyderabad v.
Rabo Bank (2015) 10 SCC 521.
15. From the foregoing analysis of the legal position, it is clear that leave to defend the summons for judgment has to be granted to the defendant when there is a triable or reasonable issue raised by him in the application for leave to defend and it has to be unconditional leave to defend. Even in a case where defendant discloses the facts which make a positive impression that at the trial the defence would be established to the plaintiff's claim, unconditional leave to defend has to be granted to him. It is only in cases where defence set up is illusory or sham or practically moon shine that plaintiff is entitled to leave to sign the judgment. It is also clear that in cases where the defendant raises plausible but improbable defence, the Court can impose conditions as to the time or mode of trial as well as payment into court or furnishing the security.
16. Coming to the facts of the instant case, the defendant has admitted that he has issued four cheques in favour of the plaintiff, but according to him these four cheques were forcibly CM(M) No.272/2025 8|P a g e obtained from him by Javaid Ahmad Qadiri and Mushtaq Ahmad Bhat, who delivered the said cheques to the plaintiff. He has also admitted that he received an amount of Rs.1,20,000/- from the above named two persons and thereafter he paid Rs.73,000/- to the plaintiff in connection with repayment of Rs.1,20,000/- to above named two persons. The defence of the defendant that Javaid Ahmad Qadiri and Mushtaq Ahmad Bhat had taken four cheques forcibly from him and thereafter they handed over the said cheques to the plaintiff, appears to be illusory. It is highly improbable that Javaid Ahmad Qadiri and Mushtaq Ahmad Bhat would have obtained the cheques from the defendant forcibly and handed over the same to the plaintiff when they could have easily got the cheques in their own name. The explanation tendered by the defendant for having repaid money in the bank account of the plaintiff and not to the aforenamed two persons from whom he is stated to have received the money, appears to be implausible, thereby raising serious doubts about his defence. In these circumstances, the learned trial Court has appropriately described the defence of plaintiff as moonshine and has granted conditional leave to defend the suit to the defendant with a view to protect the interests of the plaintiff. CM(M) No.272/2025 9|P a g e
17. It is trite law that High Court while exercising its powers under Article 227 of the Constitution, can interfere in orders passed by an inferior Court only if any gross illegality resulting in failure of justice has been committed by such a Court. Even an error of fact or an error of law cannot form a ground to interfere in an order passed by an inferior Court.
18. In the instant case, the impugned order passed by the trial Court does not suffer from any illegality, muchless gross illegality that would warrant interference from this Court in exercise of its supervisory jurisdiction. The petition lacks merit and is dismissed accordingly.
(SANJAY DHAR) JUDGE SRINAGAR 21.07.2025 Sarveeda Nissar
1. Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Sarveeda Nissar CM(M) No.272/2025 10 | P a g e I attest to the accuracy and authenticity of this document every page at bottom left side 23.07.2025 13:44