Jammu & Kashmir High Court - Srinagar Bench
Ikhlaq Ahmad Wani vs Ghulam Nabi Pandith on 12 December, 2018
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
Serial No.02
Supplementary
List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CFA No.33/2018
IA No.01/2018
Date of decision:12.12.2018
Ikhlaq Ahmad Wani Vs. Ghulam Nabi Pandith
Coram:
Hon'ble Mr Justice Rashid Ali Dar, Judge
Appearance:
For the Appellant(s): Mr. M. I. Dar, Adv.
For the Respondent(s): Mr. Showkat Ali Khan, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1) Instant Civil 1st appeal is directed against the order dated 01.11.2018,
passed by the Court of Additional District Judge, Srinagar
2) The factual backdrop giving rise to the filing of the instant Civil 1st Appeal, as emerge from the pleadings of the parties is as under:
I. The Respondent herein (hereinafter referred to as the plaintiff) instituted a suit under Order XXXVII of the Code of Civil Procedure (for short the Code) for recovery of an amount of Rs.28.50 lacs(rupees twenty-eight lacs and fifty thousand) with interest @18% against the appellant herein (hereinafter referred to as the defendant).CFA No.33/2018 IA No.01/2018 Page 1 of 10
II. In the suit, it is alleged that the defendant deals in sale and purchase of land as well as sale of constructed houses and shops at Baramulla and Srinagar. The plaintiff, in the year 2009, paid an amount of Rs.28.50/ lacs to the defendant in various installments for purchase of land at Umerabad near Narbal Masjid. The defendant after showing the land, put the plaintiff in possession of 02 kanals of land after receiving the suit amount out of which Rs.1.50/ lacs were to be paid at the time to registration. The plaintiff immediately started filling the land and dumped stones but while the work was going on, some locals stopped him and told that the land actually belongs to them which resulted in dispute between the plaintiff and the defendant. It was learnt by the plaintiff that the defendant had some dispute with the land owners to whom the payment was not made. The plaintiff demanded the amount back from the defendant. With the intervention of some friends of the parties, the defendant admitted to repay the amount of the plaintiff, as a result thereof, he executed a hundi wherein he promised to pay the amount by or before 15.07.2010.
III. It has also been pleaded in the suit that the defendant did not pay the said amount in terms of hundi despite repeated requests and reminders and later on offered to give some shops to the plaintiff out of a complex which the defendant was constructing at Jadeed Baramulla. However, after construction was completed, the defendant refused to given any shop to the plaintiff. When the defendant did not pay the amount to the plaintiff despite repeated requests, the plaintiff filed suits under Order XXXVII of the Code of Civil Procedure (for short the Code) for recovery of an amount of Rs.28.50 lacs(rupees twenty-eight lacs and fifty thousand) with interest @18% against the defendant, as referred above.
CFA No.33/2018 IA No.01/2018 Page 2 of 10IV. On being served with the notice, the defendant entered appearance before the trial court through counsel on 30.01.2016. The learned trial court directed the defendant to file an application seeking leave to defend and, accordingly, he filed an application seeking leave to defend under and in terms of Order under Order XXXVII Rule 3 CPC, on the following grounds:
i. That the suit filed by the plaintiff under Order 37 of the Code of Civil Procedure is not maintainable on the ground of territorial jurisdiction. Since the "Hundi" as is alleged by the plaintiff has been executed in the year 2010 on 05.02.2010 at Baramulla, in terms of Section 20 of the Code of Civil Procedure, any suit other than the normal suit is required to be filed at a place where the defendants resides or carries on his business. The plaintiff, by taking recourse to fraud very cleverly withheld such a fact from his pleadings in the suit, in fact, the plaintiff has not even mentioned in his suit the area of jurisdiction in which this suit would lie, so as to mislead the court from the essential point of jurisdiction. Thus, the plaintiff has maintained a clandestine silence, aimed at deceiving and misleading this Court about the territorial limits within which the instant suit could have been instituted. Since the Court lacks jurisdiction to prosecute such a matter, such infirmity going to the root of lis, the suit is liable to be dismissed in limini;
ii. That since the Hundi as is alleged by the plaintiff to have been executed by the defendant in the year 2010 at Baramulla, therefore, any deviation from the terms and conditions set out in that Hundi, would have given rise to a situation, wherein cause of action would have arisen at Baramulla only and nowhere else;CFA No.33/2018 IA No.01/2018 Page 3 of 10
iii. That the plaintiff alleges in the suit that the defendant owed him money to the tune of rupees 28.50/ lacs as a result of which a Hundi was executed in the year 2010 with respect to the same, however, it is quite astonishing that no such request was ever made to the defendant regarding the same, neither the defendant was ever conveyed about the same. If at all defendant owed plaintiff such a huge amount of money, then the same would have been conveyed to the defendant at least once in these six years, however, on the contrary plaintiff chose to remain silent for six long years and after a gap of six years has filed the suit seeking executing of a fabricated and forged Hundi. The Hundi on which plaintiff relies upon is nothing less than a forged and fabricated document nothing less than a one managed by the plaintiff so as to harass the defendant in order to extract money from him and to preclude any chance of the defendant seeking to institute a recovery suit, so as to recover the money recoverable from the plaintiff. The delay in execution of a fabricated and forged Hundi in itself depicts that the defendant was never aware of terms and conditions laid down in the Hundi so alleged to have been executed by the defendant in favour of the plaintiff;
iv. That the suit filed by the plaintiff under Order 37 of the Code of Civil Procedure is not maintainable, since the Hundi as is alleged by the plaintiff has been executed in the year 2010 on 05.02.2010 at Baramulla which is not only a forged, fabricated, manufacture document but is managed by the plaintiff on his own, in fact, the defendant has neither attested any signature on the Hundi nor has any knowledge regarding the Hundi. The defendant has never executed CFA No.33/2018 IA No.01/2018 Page 4 of 10 any Hundi in favour of the plaintiff and as a matter of fact the two witnesses mentioned in the alleged Hundi are not known to the defendant at all. Therefore, the plaintiff has himself managed this Hundi so as to extract money from the defendant. Since the signatures shown on the said Hundi have not been affixed by the defendant, the defendant volunteers to have the document of Hundi to be got examined by the experts of Forensic Science Laboratory. The plaintiff by exercising fraud should not be allowed to take benefit of any wrong. Since the defaulted amount as is alleged by the plaintiff is without any basis, vague merely because of the reason that the defendant does not owe any money to the plaintiff, in fact the plaintiffs owes money to the defendant and once the defendant approached the plaintiff and asked for money, the plaintiff by manufacturing this forged Hundi has again started to harass the defendant in order to extract money from him;
v. That the allegations levelled against the defendant by the plaintiff that he received money to the tune of Rs.28.50/ lacs lacks credence and is liable to be rejected. Since the plaintiff before the instant suit has also by misrepresenting the facts involved the defendant in one of the frivolous cases in the year 2012. The plaintiff filed a complaint before the Court of Sub Judge Judicial Magistrate, Baramulla, under Section 138 of Negotiable Instruments Act against the defendant alleging therein that the defendant had issued few cheques in favour of the plaintiff which could not get encashed due to insufficiency of funds in the defendants account. However, as a matter of fact, the plaintiff actually was involved in the business activities carried out by the defendant at Baramulla and the plaintiff used to work with the CFA No.33/2018 IA No.01/2018 Page 5 of 10 defendant and during the said period, the defendant from time to time gave money to the plaintiff which he could not repay and once the defendant started to ask for the same, the plaintiff, in order to deprive him of his money, filed the complaint under Section 138 of Negotiable Instruments Act by forging the signatures of the defendants on those cheques. Once the trial started, the defendant in order to settle the controversy put forward a proposal before the court for settling the matter amicably and the Court on consideration of the matter allowed both the parties to enter into a compromise. The complaint came to be disposed of by the Court of Sub Judge/Judicial Magistrate, Baramulla vide order dated 19.12.2012 in terms of the compromise entered into by the plaintiff and defendant. The plaintiff has categorically and in unequivocal terms admitted that no issue pertaining to the money continues to remain between the plaintiff and in fact no outstanding whatsoever remains between the plaintiff and the defendant. The plaintiff has filed the suit because of the fact that the plaintiff owes money to the defendant. The plaintiff has become habitual of following such malpractices and has by resorting to fraudulent means carved out a way to harass and extract money from the innocent people. The plaintiff by formulating his own illusory, imaginary stories of presenting the defendant as the one who has defaulted in making the payment and has also managed to come up with a fake, fabricated and manufactured Hundi. In terms of compromise mentioned in the order dated 19.12.2012 passed in complaint under Section 138 of Negotiable Instruments Act, it is categorically stated that no issue pertaining to the money exists between the plaintiff and the defendant and no outstanding remains CFA No.33/2018 IA No.01/2018 Page 6 of 10 between both. Therefore, it is not permissible for the plaintiff to maintain the suit;
vi. That had there been a Hundi executed by the defendant in favour of the plaintiff, the plaintiff would have made a reference thereto in the complaint filed by him under Section 138 of Negotiable Instruments Act before the Court of Sub Judge/Judicial Magistrate, Baramulla. A glance of the contents of the complaint reveals that no such reference had been made which is indicative of the fact that such Hundi did not exist at the time and the Hundi is nothing more than a forged and fabricated document.
3) The learned Court of Additional District Judge, Srinagar, after hearing both sides and relying on various judgments of the Hon'ble Apex Court as also of this High Court, in terms of impugned order, concluded as under:
"Thus keeping in tune with the mandate and law laid down by the Hon'ble Apex Court in the supra judgments, although defence urged by the defendant seems to be illusory and sham yet right to defend the suit is granted subject to the condition that defendant shall deposit an amount of Rs.28.50 lacs in the court or in the alternative pays or deposits cash security of Rs.28.50 lacs in the shape of Bank guarantee in the name of court or demand draft within a period of 30 days failing which it shall be deemed that the defendant has no defense to defend the suit filed by the plaintiff under Order 37 and the plaintiff shall be entitled to grant of decree as prayed for. Application is disposed of accordingly and be made part of record. Let the suit come up for further proceedings on 01.12.2018."CFA No.33/2018 IA No.01/2018 Page 7 of 10
4) Dissatisfied with the order dated 01.11.2018 (supra) instant Civil 1 st Appeal has been filed.
5) Heard learned counsel for the parties and perused the material available on record.
6) Mr. Dar, learned counsel for the appellant has taken reliance on the following judgments:
(1) M/S Mechalec Engineers & Manufacturers Vs. M/S Basic Equipment Corporation (AIR 1977 SC 577) (2) Narrinder Kumar Vs. Kundan Lal Gupta (S.L.J 1989 J&K
223);
(3) Mukhtar Ahmad & anr Vs. Mehraj-ud-Din and anr (2003 S.L.J (1) 125);
(4) T. Sukender Reddy Vs. M. Surender Reddy (AIR 1998 AP
399)
7) In "M/S Mechalec Engineers & Manufacturers Vs. M/S Basic Equipment Corporation (AIR 1977 SC 577), their Lordships of Hon'ble Apex Court held at para 8(c) that "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 had a defence yet shows such a stated of facts as leads to the inference that 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."
8) In "Narrinder Kumar Vs. Kundan Lal Gupta" (S.L.J 1989 J&K 223), this Court held that "Court can grant leave to defend the suit without imposing any CFA No.33/2018 IA No.01/2018 Page 8 of 10 condition or may impose any such condition which appears to it just. It cannot impose condition of furnishing of Bank guarantee." It has also been held that "the condition imposed by the learned Judge under the impugned order travels beyond the scope of judicial discretion."
9) In "Mukhtar Ahmad & anr Vs. Mehraj-ud-Din and anr" (2003 S.L.J (1)
125), a Coordinate Bench of this Court held that "in case the defendant succeeds to show to the court that he has sufficient cause to resist the claim of the plaintiff, the court has to grant unconditional leave to defend the suit."
10) In "T. Sukender Reddy Vs. M. Surender Reddy" (AIR 1998 AP 399, High Court of Andhra Pradesh held the condition as to deposition of amount contrary to law.
11) Emphasis of learned counsel for the plaintiff has been on the argument that the leave ought to have been granted unconditionally and directing the appellant herein to deposit Rs.28.50/ lacs in the Court or deposit cash security of Rs.28.50/ lacs in the shape of bank guarantee, is virtually an act by which the defendant/appellant is disabled to contest the case. The ground projected for grant of leave, according to him, is bona fide and not a cover up to defeat any of the rights of the plaintiff. Further argument of the learned counsel is that the earlier compromise entered into between the parties with regard to a lis pending before the Court of Sub Judge/Judicial Magistrate, Baramulla was also suggestive of the fact that there was nothing outstanding against the appellant herein. In case, according to him, there would have been any amount outstanding against the appellant herein, it would have found place in the compromise so entered between the parties at the relevant time.
12) On the other hand, Mr. Khan, learned counsel for the respondent submitted that the leave granted on the condition of deposition of amount or furnishing of CFA No.33/2018 IA No.01/2018 Page 9 of 10 bank guarantee is proper exercise of discretion and cannot be interfered with. It is also his contention that the trial court ought to have granted decree in favour of the plaintiff/respondent as in the application moved for grant of leave, the defendant has taken the plea that it would be the Court at Baramulla which would be having the jurisdiction in view of execution of instrument at the said place.
This, according to him, is an admission of the execution of instrument of which due notice has been taken by the Court and so leave granted with condition referred supra.
13) Considered the rival arguments. It requires to be noted at the very inception that the appellant herein has challenged an order passed by the Court in terms of which leave in his favour has been granted on the condition of deposition of money in the Court or furnishing of bank security. The decree has not followed so far. The remedy, if any, against such an order is not by way of an appeal as filed by the appellant herein. The appeal is provided only if the judgment and decree has followed in the matter, which, admittedly, is not the case in hand. No appeal lies against a mere finding, is quite clear on going through |Sections 96 and 100 of CPC along with order 43. In this view of the matter, the appeal would fall at the preliminary stage being incompetent and is thus held liable for dismissal and is, accordingly, dismissed. The dismissal of the appeal, however, will not preclude the appellant from having recourse to other remedial measures, if any, against the impugned order.
14) Copy of this order be sent to the learned trial court for information.
(Rashid Ali Dar) Judge Srinagar 12.12.2018 "Bhat Altaf, PS"
CFA No.33/2018 IA No.01/2018 Page 10 of 10