HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

CM(M) No. 39/2023

CM No. 1199/2023
Caveat No. 283/2023
Reserved on : 17.03.2023
Pronounced on : 11.05.2023

UT of J&K and others …..Petitioner(s)/Appellant(s)

Through: Mr. Sajad Ashraf, GA

Vs

Shabir Ahmad Dar and others .….Respondent(s)

Through: Mr. Manzoor A. Dar, Advocate

Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

JUDGEMENT

01. Supervisory jurisdiction of this Court enshrined under Article

227 of the Constitution of India is being invoked by the petitioners for

seeking quashment of order dated 21.12.2022 (for short “impugned

order”) passed by the Court of Additional District Judge (Bank Cases),

Srinagar (for short “the trial Court”) in case titled as, “Shabir Ahmad

Dar and Ors. vs. Commissioner-cum-Secretary and ors.”.

Heard learned counsel for the parties.

02. The background facts emerging from the record of the

petition would reveal that the contesting respondents herein filed a

summary suit under Order 37 of the Code of Civil Procedure (CPC)

against the petitioners and the proforma respondent No. 7 herein for

recovery of an amount of ₹ 57.23 lacs on the premise that the

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plaintiffs/respondent Nos. 1 to 6 being piece workers have been

associated with the Estates Department for execution of civil, electric,

sanitary and other related works, executed upon submission of

quotations invited by the Estates Department upon approval of rates on

annual basis to meet exigencies of work to be completed by the Estates

Department for meeting demands of various Govt. departments and

their officials in relation to providing of accommodation, furniture,

fixtures etc. and that the said works including renovation and repairs on

annual basis are stated were executed on emergency basis by the

plaintiffs/respondents herein as per the requirement of the Engineering

Wing of the Estates Department, whereafter upon completion of the

said works, bills for payments came to be submitted after the recording

of measurements as also test checks conducted by the supervisory staff

of the Estates Department and that the said bills used to be forwarded to

the Executive Engineer after their certification for approval and

payment and that funds in this regard used to be requisitioned and

consequently payments thereof made periodically by the Estates

Department to the plaintiff/respondents herein, and that to the dismay

and disappointment of the plaintiffs/respondents herein, the works

executed by them in the Estates Department post abrogation of Article

370 of the Constitution came to be withheld by the

defendants/petitioners herein, against the works executed by the

plaintiffs/respondents herein, amounting to ₹ 40 lacs despite the fact

that in order to make payments and in order to meet the liability, an

amount of ₹ 37.52 lacs had been kept available by the Assembly

 3 CM(M) No. 39/2023

Secretariat in the treasury and to be released by the Executive Engineer

in favour of the plaintiffs/respondents herein, which however, could not

be released on account of the emergent situation having cropped up on

account of abrogation of Article 370 in the month of August, 2019 and

conversion of MLA Hostel into a sub-jail for housing political

detainees, which hostel upon the visit by the officials of the District

Administration was ordered to be repaired on emergent basis resulting

into consequent engagement of the plaintiffs/respondents herein by the

defendant/petitioner No. 3 herein, whereupon the plaintiffs/respondents

herein executed works to the tune of ₹ 18.35 lacs and raised bills

after recording of certification by the engineering staff and that despite

satisfactory completion of the works in question, the

defendants/petitioners herein did not disburse payments in favour of the

plaintiffs/respondents herein owing to the changes recorded in the codal

formalities relating to the disbursement of the payments, which

included execution of an agreement, and that on account of the failure

of the defendants/petitioners herein to release the said payments in

favour of the plaintiffs/respondents herein, a notice under section

80 CPC in the first instance came to be served upon the

defendants/petitioners herein, as a pre-litigation proceedings, in

response to which the defendants/petitioners herein replied and

admitted the execution of work by the plaintiffs/respondents herein as

also their entitlement thereof, though with the caveat of execution of an

agreement besides that a post-facto sanction had been sought to get

relaxation in making payment dispensing with the requirement of

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“Online Pace System” of making payment and that owing to the failure

of the defendants/petitioners herein to redress the grievances of the

petitioner in pre-litigation forum, the plaintiffs/respondents herein got

compelled to institute the summary suit supra before the trial Court.

03. Perusal of the record reveals that the trial Court upon taking

cognizance of the suit as being commercial in nature, issued summons

to the defendants/petitioners herein under Order 37 of the CPC

whereafter the petitioners as also the proforma respondent No. 7 herein

sought leave to defend the suit inter-alia on the ground of

non-existence of a written agreement being a basic requirement for

instituting a summary suit under Order 37 of the CPC together with

objections related to the limitation besides the bar contained in Section

69 of the Partnership Act, 1932.

04. The record would further demonstrate that the trial Court

while dealing with matter of leave sought by the defendants/petitioners

herein for defending the suit proceeded to pass the impugned order

dated 21.12.2022 while taking into consideration the entire material

before it including the admission made by the defendants/petitioners

herein about the execution of work by the plaintiffs/respondent

Nos. 1 to 6 herein and withholding of payments payable to the

plaintiffs/respondents herein due to non-execution of written agreement

and consequently granted leave to the defendants/petitioners herein to

defend the suit subject to the deposition of ₹ 37.82 lacs earmarked for

disbursement and kept as a reserve in the treasury.

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05. The grant of leave to defend in a summary suit filed under

Order 37(3) of the CPC has been dealt with by the Apex Court in the

case of “IDBI Trusteeship Services Limited Vs Hubtown Limited”

reported in (2017)1 SCC 568, wherein at paragraph 17 following has

been laid down:-

“17. Accordingly, the principles stated in para 8 of Mechelec’s

case will now stand superseded, given the amendment of
Order 37 Rule 3 and the binding decision of four Judges in
Milkhiram case as follows:-

I. If the defendant satisfies the Court that he has a substantial

defence, that is, a defence that is likely to succeed, the
plaintiff is not entitled to leave to sign judgment, and the
defendant is entitled to unconditional leave to defend the
suit.
II. If the defendant raises triable issues indicating that he has a
fair or reasonable defence, although not a positively good
defence, the plaintiff is not entitled to sign judgment, and
the defendant is ordinarily entitled to unconditional leave to
defend.
III. Even if the defendant raises triable issues, if a doubt is left
with the trial judge about the defendant’s good faith, or the
genuineness of the triable issues, the trial judge may impose
conditions both as to time or mode of trial, as well as
payment into court or furnishing security. Care must be
taken to see that the object of the provisions to assist
expeditious disposal of commercial causes is not defeated.
Care must also be taken to see that such triable issues are
not shut out by unduly severe orders as to deposit or
security.
IV. If the Defendant raises a defence which is plausible but
improbable, the trial Judge may impose conditions as to
time or mode of trial, as well as payment into court, or
furnishing security. As such a defence does not raise triable
issues, conditions as to deposit or security or both can
extend to the entire principal sum together with such
interest as the court feels the justice of the case requires.
V. If the Defendant has no substantial defence and/or raises no
genuine triable issues, and the court finds such defence to
be frivolous or vexatious, then leave to defend the suit shall
be refused, and the plaintiff is entitled to judgment
forthwith.
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VI. If any part of the amount claimed by the plaintiff is

admitted by the defendant to be due from him, leave to
defend the suit, (even if triable issues or a substantial
defence is raised), shall not be granted unless the amount so
admitted to be due is deposited by the defendant in court.”

It is also pertinent to refer to Section 8 of the Commercial

Courts Act, 2015 being relevant and germane herein, which reads as

under:-

“8. Bar against revision application or petition against an

interlocutory order—

Notwithstanding anything contained in any other law for

the time being in force, no civil revision application or
petition shall be entertained against any interlocutory order
of a Commercial Court, including an order on the issue of
jurisdiction, and any such challenge, subject to the
provisions of section 13, shall be raised only in an appeal
against the decree of the Commercial Court.”

06. Keeping in mind the aforesaid principles and provisions of

law and reverting back to the case in hand, the validity and legality of

the impugned order may be adverted to. It is pertinent to note here that

during the course of hearing of the matter counsel for the

plaintiffs/respondent Nos. 1 to 6 herein produced a copy of the

objections filed by the defendant Nos. 2 to 4/ petitioners herein before

the trial Court, filed in opposition to the motion laid by the

plaintiffs/respondent Nos. 1 to 6 herein seeking initiation of the

mediation process and would contend that in the said objections, the

defendants/petitioners herein have had admitted the execution of works

by the plaintiffs/respondent Nos. 1 to 6 herein as also the bill amount

payable to them being of ₹ 37.82 lacs deposited in the Sadder Treasury

 7 CM(M) No. 39/2023

under Account Head 8443-DCW of MLA Hostel. The petitioners

herein, however, have withheld this fact from this Court, yet it is

manifest that the trial Court has rightly refused the grant of

unconditional leave to the defendants/petitioners herein. The

contentions raised and the grounds urged by the petitioners furthermore

do not match the legal principles laid down by the High Court of Delhi

in case titled as “M/s Punjab Pen House Vs Samrat Bicycle Ltd.”

reported in AIR 1992 Delhi 1, wherein it has been held that the

invoices/bills are “written contracts” within the contemplation of Order

37 of the CPC and, as such, the plea raised by the

defendants/petitioners herein that there has been no written contract in

existence between the plaintiffs/respondent Nos. 1 to 6 herein and the

defendants/petitioners herein, entitling them to institute a summary suit

under Order 37 of the CPC is not legally sustainable.

07. The next question that needs to be addressed in the instant

case by this Court would be as to whether having regard to the facts

and circumstances of the case, coupled with the provisions of Section 8

of the Commercial Courts Act, 2015, the supervisory jurisdiction of

this Court enshrined under Article 227 of the Constitution of India is

warranted. A reference in this regard to the judgements of the Apex

Court passed in case of “Jai Singh and others Vs Municipal

Corporation of Delhi,” reported in (2010)9 SCC 385, wherein at

para-15, following has been held:-

“15. We have anxiously considered the submissions of the learned

counsel. Before we consider the factual and legal issues involved
 8 CM(M) No. 39/2023

herein, we may notice certain well recognized principles

governing the exercise of jurisdiction by the High Court
under Article 227 of the Constitution of India. Undoubtedly the
High Court, under this Article, has the jurisdiction to ensure that
all subordinate courts as well as statutory or quasi judicial
tribunals, exercise the powers vested in them, within the bounds of
their authority. The High Court has the power and the
jurisdiction to ensure that they act in accordance with the well
established principles of law. The High Court is vested with the
powers of superintendence and/or judicial revision, even in
matters where no revision or appeal lies to the High Court. The
jurisdiction under this Article is, in some ways, wider than the
power and jurisdiction under Article 226 of the Constitution
of India. It is, however, well to remember the well known adage
that greater the power, greater the care and caution in exercise
thereof. The High Court is, therefore, expected to exercise such
wide powers with great care, caution and circumspection. The
exercise of jurisdiction must be within the well recognized
constraints. It cannot be exercised like a `bull in a china shop', to
correct all errors of judgment of a court, or tribunal, acting
within the limits of its jurisdiction. This correctional jurisdiction
can be exercised in cases where orders have been passed in grave
dereliction of duty or in flagrant abuse of fundamental principles
of law or justice. The High Court cannot lightly or liberally act as
an appellate court and re-appreciate the evidence. Generally, it
cannot substitute its own conclusions for the conclusions reached
by the courts below or the statutory/quasi judicial tribunals. The
power to re-appreciate evidence would only be justified in rare
and exceptional situations where grave injustice would be done
unless the High Court interferes. The exercise of such
discretionary power would depend on the peculiar facts of each
case, with the sole objective of ensuring that there is no
miscarriage of justice.”

In “Garmet Craft Vs Prakash Chand Goel,” reported in

(2022) 4 SCC 181, at Paras-15 & 16, it has been held as under by the

Apex Court:-

“15. Having heard the counsel for the parties, we are clearly of the view
that the impugned order is contrary to law and cannot be
sustained for several reasons, but primarily for deviation from the
limited jurisdiction exercised by the High Court under Article
227 of the Constitution of India. The High Court exercising
supervisory jurisdiction does not act as a court of first appeal to
reappreciate, reweigh the evidence or facts upon which the
determination under challenge is based. Supervisory jurisdiction
is not to correct every error of fact or even a legal flaw when the
final finding is justified or can be supported. The High Court is
not to substitute its own decision on facts and conclusion, for that
of the inferior court or tribunal. The jurisdiction exercised is in
the nature of correctional jurisdiction to set right grave
dereliction of duty or flagrant abuse, violation of fundamental
principles of law or justice. The power under Article 227 is
 9 CM(M) No. 39/2023

exercised sparingly in appropriate cases, like when there is no

evidence at all to justify, or the finding is so perverse that no
reasonable person can possibly come to such a conclusion that the
court or tribunal has come to. It is axiomatic that such
discretionary relief must be exercised to ensure there is no
miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court
in Estralla Rubber v. Dass Estate (P) Ltd. has observed:-

“6. The scope and ambit of exercise of power and jurisdiction

by a High Court under Article 227 of the Constitution of
India is examined and explained in a number of decisions
of this Court. The exercise of power under this article
involves a duty on the High Court to keep inferior courts
and tribunals within the bounds of their authority and to
see that they do the duty expected or required of them in
a legal manner. The High Court is not vested with any
unlimited prerogative to correct all kinds of hardship or
wrong decisions made within the limits of the jurisdiction
of the subordinate courts or tribunals. Exercise of this
power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of
duty and flagrant violation of fundamental principles of
law or justice, where if the High Court does not interfere,
a grave injustice remains uncorrected. It is also well
settled that the High Court while acting under this article
cannot exercise its power as an appellate court or
substitute its own judgment in place of that of the
subordinate court to correct an error, which is not
apparent on the face of the record. The High Court can
set aside or ignore the findings of facts of an inferior court
or tribunal, if there is no evidence at all to justify or the
finding is so perverse, that no reasonable person can
possibly come to such a conclusion, which the court or
tribunal has come to.”

08. Viewed thus, in the context of what has been observed,

analyzed and considered in the preceding paragraphs, the impugned

order does not call for any interference. Resultantly, the petition fails

and is, accordingly, dismissed.

(JAVED IQBAL WANI)

JUDGE
SRINAGAR
11.05.2023
Muneesh
Whether the order is reportable: Yes
Whether the order is speaking : Yes