HABIBULLAH Vs. GULZAR HUSSAIN

JUDGEMENT

(1.) Supervisory jurisdiction of this Court vested in terms of Section 104 of the Constitution of Jammu and Kashmir is invoked by the petitioner to assail the validity of order dated 29.10.2008, passed by the learned Principal District Judge, Kargil (hereinafter referred to as the 'Trial Court') whereby application of the petitioner/defendant seeking leave to defend in terms of Order XXXVII Rule 3 of Code of Civil Procedure has been rejected.

(2.) Briefly put, the background facts leading to the filing of the instant petition are that the respondent has filed a suit purportedly under the provisions of Order XXXVII of Code of Civil Procedure for recovery of Rs.25.00 lacs along with interest on the basis of Hundi executed by the petitioner. The learned Trial Court entertained the suit and issued summons to the petitioner in accordance with the procedures laid down in Order XXXVII. On being summoned, the petitioner caused his appearance and filed an application under Order XXXVII Rule 5 CPC seeking leave to defend. The said application was opposed by the respondent by filing objections. The respondent claimed that in view of non-disclosure of any cogent defence by the petitioner in the application, he (respondent) was entitled to judgment forthwith.

(3.) The Trial Court considered the application and vide its order dated 29th October,2018, impugned in this petition, granted the petitioner conditional leave to defend. The leave was granted subject to the petitioner depositing a sum of Rs.9.00 lacs by way of security in the form of cash in the Court. The conditional leave, as is apparent from the order impugned, was granted on the ground that the petitioner in the collateral criminal proceedings had admitted his liability to pay an amount of Rs.9.00 lacs to the respondent. This has been done by the trial Court apparently relying upon the second proviso to Order XXXVII Rule 3(5) of Code of Civil Procedure. The petitioner is aggrieved of the order impugned, whereby his application seeking leave to defend has been granted conditionally and is before this Court seeking exercise of power of superintendence vested in this Court by virtue of Section 104 of the Constitution of Jammu and Kashmir to quash the same.