[Summary Suit] Dismissing Application For Leave To Defend In Suit For Non-Prosecution Is Unsustainable In Law: J&K High Court

The court held that the trial court is legally bound to consider the defence put up by the defendant in the application on its merits, notwithstanding the absence of the defendant on the date on which the said application is taken up for consideration.

A bench of Justice Sanjay Dhar set aside the decree and judgment passed by the trial court and remanded the matter for fresh consideration after taking into account the application for leave to defend filed by the defendant on merits and passing an order in accordance with the law.

The court said that in cases where such ex-parte decree is passed under summary suits, the aggrieved party has the remedy either to set aside the decree or to seek an appeal against the same.

The court held that the requirement to show 'special circumstances' to set aside the ex-parte decree does not apply to a regular first appeal. It also held that the non-consideration of the application for leave to defend the suit on its merits by the trial court definitely constitutes a special circumstance warranting the intervention of this Court.

The court also observed that where such an ex-parte decree is passed, if the defendant files a first appeal and the same is dismissed, then the ex-parte decree merges with the order of the Appellate Court, and thereafter, an application for setting aside the decree would not be maintainable. However, if an application for setting aside the decree is preferred first and dismissed, an appeal thereafter is not barred.

BACKGROUND

The appellant had filed an application for leave to defend the summary suit under Order XXXVII of the CPC. However, the appellant failed to appear before the court, and his application for leave to defend was dismissed in default by the trial court. The appellant filed an application for the recall of the order, but the same was dismissed. Since the application for leave to defend had already been dismissed, the court passed an ex-parte decree and judgment. The appellant also moved an application for setting aside the decree, but the same was dismissed for being filed after the prescribed time period.

The court held that an application for leave to defend cannot be dismissed in default and must be decided on the merits of the case. The court stated that it can reject the application only where the defense of the appellant is not plausible. It held that the dismissal of the application without considering the leave to defend is unsustainable in law.

APPEARANCE:

Zahid Hussain, Advocate. For Appellants

T. A. Lone, Advocate. For Respondents

Case-Title: Ahsan Ahmad Malik Vs Basharat Feroz Ganie, 2025

Citation: 2025 LiveLaw (JKL) 54

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