JAVAID AHMAD WANI Vs. GH. MOHD. CHAT

JUDGEMENT

(1.) PETITIONERS have filed this writ petition under Section 104 of the Constitution of Jammu and Kashmir, invoking the power of Superintendence of this Court to quash the conditions laid down in order dated 23.02.2012 passed by the learned Principal District Judge, Pulwama, in the suit filed against the petitioners by the respondent herein under the provisions of Order XXXVII of the Code of Civil Procedure [Refer JK Laws 2nd Ed. 2013 Vol. 5 P -803]. The facts narrated in writ petition are that the petitioners are stated to have borrowed an amount of Rs. 11,90,000.00 from the respondent herein on 11.06.2010 in lieu whereof a promissory note/hundi was executed by them in favour of the respondent. For recovery of the said amount of Rs. 11,90,000.00 along with interest thereon with effect from 11.06.2010 till its final payment, the respondent filed a suit under Order XXXVII of the Code of Civil Procedure against the petitioners before the learned Principal District Judge, Pulwama. It is averred in the petition that the respondent -plaintiff manipulated a report on the summons issued by the trial court to the petitioners -defendants, requiring them to cause appearance within 10 days from the date of service thereof etc., and that the petitioners -defendants were kept in dark about the actual period of time within which they were required to enter their appearance. The petitioners had, therefore, to seek extension of time to enter their appearance and condonation of the delay. The trial court, after obtaining objections from the respondent -plaintiff and hearing arguments, condoned the delay by order dated 18.08.2011. Consequently, it is stated that, the petitioners -defendants entered their appearance on the same date. The respondent -plaintiff, thereafter, filed an application for serving on the petitioners -defendants summons for judgment in Form 4 -A, returnable within 10 days. In response thereto, the petitioners made an application under the provisions of Rule 4 of Order XXXVII CPC for grant of leave to defend the suit. The learned trial court, it is averred, passed a detailed order dated 23.02.2012 and allowed the application recording that the defendants have a good defence to the claim on its merits and allowed them to defend the suit subject to deposition of Rs. 2.60 lacs by the petitioners -defendants in the court as the admitted outstanding liability, and further tendering a solvent/non -bank guarantee of two reputed persons in respect of an amount of Rs. 10.00 lacs for assuring the payment of the suit amount, if decreed along with interests and costs. The petitioners -defendants are aggrieved of the aforesaid two conditions laid in the order in question dated 23.02.2012.

(2.) RESPONDENT -plaintiff has filed his objections/reply to the writ petition wherein the he has objected to the maintainability of the writ petition. It is stated that since the petitioners -defendants, while contesting the suit before the trial court, have admitted their liability to the extent of Rs. 2.60 lacs, the trial court was within its powers to require them to deposit the said amount before the court towards recovery of the claimed amount and that the order passed by the learned trial court is legally valid and justified under law.

(3.) AT the hearing the learned counsel for the parties made a fair deal of arguments for and against the maintainability of this petition. However, before dealing with the issue of maintainability of the writ petition, I deem it appropriate to advert to the contentions raised by the petitioners in this petition.