O.37 R.3 CPC | Courts Can Allow Conditional Leave To Defend Summary Suits, With Terms Tailored To Specific Facts Of Each Case: J&K High Court

A bench of Justice Javed Iqbal Wani accentuated that this discretion is exercised based on the specific facts and circumstances of each case, and upon compliance with such terms, the defendant earns the right to defend the suit.

“… Leave to defend may be granted to a defendant in a suit filed under Order 37 CPC unconditionally or upon such terms as may appear to the court to be just, manifestly suggesting that discretion is left to the court to put the defendant on terms in the facts and circumstances of a particular case on compliance whereof the defendant is entitled to defend the suit”, the court recorded.

Background of the Case:

The case arose when the respondent, Mudasir Farooq Malik, filed a suit for the recovery of a certain amount against the appellants, the UT of Jammu and Kashmir and others, under Order 37 of the CPC. The claim stemmed from civil construction work undertaken by the respondent for which payment had not been made.

The trial court initially granted conditional leave to defend the case on the condition that the appellants deposit 10% of the claimed amount. However, the appellants failed to meet this condition, leading to the trial court passing a judgment and decree against them. This order was subsequently challenged in the present appeal.

The appellants contended that the trial court erred in imposing conditions for leave to defend, despite acknowledging that triable issues were involved. They argued that the non-fulfillment of the conditional leave should not have led to the passing of the impugned judgment and decree. The appellants further claimed that the trial court's judgment was unsustainable in law and should be set aside.

Conversely, the respondent's counsel maintained that the appellants were precluded from raising objections to the conditional leave as they had not challenged the order dated December 28, 2022, which granted them the conditional leave. Therefore, the respondent asserted that the appellants had no grounds to dispute the validity of the trial court's decree.

Court's Observations:

Adjudicating upon the matter Justice Wani, referred to Order 37 Rule 3(5) CPC, which allows courts to grant leave to defend suits either unconditionally or upon such terms as may appear just. It was highlighted that the court's discretion to impose such conditions is grounded in the facts of each case.

The court also referred Mechelec Engineers and Manufacturers v. Basic Equipment Corporation reported in (1976) where it was noted that conditions for defending a suit, including the deposit of a sum, are justified only in cases where the defense appears illusory or frivolous.

Further, the court observed that the appellants had never challenged the conditional leave order of December 28, 2022. Consequently, they could not contest the trial court's judgment based on their failure to comply with those conditions.

As Justice Wani put it, “the order of grant of conditional leave dated 28th December 2022 passed by the trial court was never ever either questioned by the defendants appellants herein.”

He also reiterated that the plea concerning the conditional leave could not be entertained as the appeal was against the final judgment and decree, not against the discretionary order granting leave.

Concluding that the trial court acted within its powers under Order 37 Rule (3)(6) CPC in passing the decree upon the appellants' failure to comply with the conditions for defending the suit the appeal was dismissed, and the trial court's judgment was upheld.

Case Title: UT Of J&K Vs Mudasir Farooq Malik

Citation: 2024 LiveLaw (JKL) 279

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