Expedited Resolution In Summary Suits Cannot Come At The Cost Of Defendant's Fair Opportunity To Defend Himself: J&K High Court

Citing 'Sudin Dilip Talaulikar v. Polycap Wires Private Limited & Ors.'(2019) Justice M A Chowdhary expounded,

“..When the defence discloses facts of prima facie fair and reasonable defence, unconditional leave has to be granted and it relates to the subjective satisfaction of the Court on the basis of the material that may be placed before it and when the Court is satisfied that the defence is plausible or probable and is not sham or moonshine, but still it has some doubt over the defence, then conditional leave may be granted to the Defendant”.

The case revolved around a dispute between Mohammad Altaf Mir, the appellant, and Firdous Ahmad Mir, the respondent, concerning a judgment and decree passed by the Trial Court in favour of the respondent. The Trial Court had decreed the suit, directing the appellant to pay a substantial amount and interest.

The appellant, represented by Advocate Rizwan-u-Zaman Bhat contested the Trial Court's decision, arguing that the court failed to consider crucial aspects. Specifically, he emphasized that the outstanding amount payable to the respondent did not exceed Rs.30,000, and the Trial Court overlooked the dispute regarding the execution of the Hundi, a negotiable instrument.

He further argued that by raising triable issues it was imperative for the Trial Court to grant unconditional leave to the Defendant, however, neither conditional nor unconditional leave was granted and the Appellant has been denied this remedy of a full-fledged trial detrimental to the substantial justice.

On the other hand, Mr. Syed Sajad Geelani, Advocate for the respondent, argued that the appellant's defence was trivial and lacked merit. He contended that the appellant had borrowed a substantial amount and failed to repay, leading to the issuance of the Hundi.

After considering the rival contentions Justice Chowdhary ruled in the favour of the appellants and observed that if the defense discloses a triable issue that is plausible, leave should be granted. The Court held that if the defendant raises triable issues, even if not a positively good defence, he is ordinarily entitled to defend the suit.

Delineating between the intricacies of a conditional or unconditional leave to defend a summary suit, Justice Chowdhary clarified that an unconditional leave relates to the subjective satisfaction of the Court on the basis of the material that may be placed before it, whereas in conditional leave, element of discretion vests with the Court.

Noting that the appellant's claims about repayment and the forced signing of the Hundi were plausible and raised triable issues the court held that the Trial Court had erred in categorizing the defence as 'moonshine' without properly considering the triable issues.

Therefore the court allowed the appeal, setting aside the impugned judgment and decree. The case was remanded back to the Trial Court for a fresh trial, with the direction to grant conditional leave to the appellant.

Case Title: Mohammad Altaf Mir V/ S Firdous Ahmad Mir

Citation: 2024 LiveLaw (JKL) 8

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