UNION TERRITORY OF J AND K AND ORS. (GENERAL ADMINISTRATION) vs SHABIR AHMAD DAR AND ORS.

Serial No.25
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR

RFA No. 31/2024

Reserved on: 05.11.2026
Pronounced on: 13 .11.2026
Uploaded on: 13.11.2026
Whether the operative part or full
judgment is pronounced: Full

1. UNION TERRITORY OF J & K Th. Commissioner Secretary to Govt. GAD,
Civil Secretariat, Srinagar/Jammu.
2. Director Estates Civil Secretariat, Jammu/Srinagar.
3. Executive Engineer Division Estates Division Srinagar. (Now R&B)
rd
Project Division 3 Srinagar.
……...Petitioner(s)
Through:
Mr. Illyas Nazir Laway, GA

Versus
1. Shabir Ahmad Dar S/o Ghulam Mohammad Dar
nd
R/O 2 Bridge, Habakadal, Srlnagar.
2. Fayaz Ahmad Mir S/o Abdul Ahad Mir Vo Brein
Nishat Srinagar.
3. Sajad Naseer Bhat S/o Naseer Ahmed Bhat R/o Brein Nishat Srinagar.
4. Farooq Ahmad Dar S/o Ghulam Mohammad Dar
R/o: 2nd Bridge, Habakadal Srinagar.
5. M/S New Bhat Electric through Naseer Ahmad
Bhat S/o Ghulam Rasool Bhat R/o: 2nd Bridge,
Habakadal Srinagar.
6. Farooq Ahmad Dar (M/S Farooq Electronics) S/o:
Ghulam' Mohammad Dar R/O: 2tr Bridge,
Habakadal, Srinagar.
7. Mr. Khursheed A Wani, the then Executive
Engineer, Estates Division, Habib Colony, H.
No. 1' 5-Bhagaat, Srinagar.
. ……Respondent(s)
Through:
Mr.Manzoor Ahmad Dar, Adv.
Mr. Javaid, Adv.


CORAM :
HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE


JUDGMENT

01 . The instant Civil First Appeal has been preferred by the
appellants against the judgment and decree dated
12.08.2023 passed by the learned Additional District Judge
(Bank Cases), Srinagar, in a summary suit titled Shabir
Ahmad Dar and others vs. Commissioner-cum-Secretary and
others , under and in terms of Order XXXVII of the Code of
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Civil Procedure, decreeing in favour of the respondents for an
amount of Rs. 57.23 lacs, along with interest and costs.
Factual Matrix:
02. The respondents/plaintiffs are claimed to have executed
electrical works at the MLA Hostel, Srinagar, to the tune of
Rs. 37.82 lacs. The funds in this regard were stated to have
been contributed by the Legislative Assembly Secretariat,
J&K, and released in favour of the Directorate of Estates,
Civil Secretariat, J&K, to be placed at the disposal of the
Executive Engineer, Estates Division, Srinagar, for meeting
the expenditure incurred in this behalf. It is, however, stated
that no public tenders were invited for execution of the
aforesaid works.
03. The respondents/plaintiffs instituted a suit before the
Court of learned Additional District Judge (Bank Cases),
Srinagar, under Order XXXVII CPC against the
appellants/defendants, seeking recovery of an amount of Rs.
57.32 lacs on account of the aforesaid works allegedly
executed by them at the behest and under the directions of
the appellants. The reliefs claimed in the suit were as follows:
(i) A decree for recovery of an amount of Rs. 57.32 lacs on account of the
works executed by the plaintiffs at the behest and under the directions of
the defendants;
(ii) A decree for payment of interest on account of alleged illegal retention
of the amount from the date the same became due until its final
realization; and
(iii) Any other relief or decree which the Court may deem just and proper
in the facts and circumstances of the case, including costs of the suit .
05. The Estates Department filed an application before the
learned trial Court seeking leave to defend the suit.
06. Upon consideration of the rival submissions, the learned
trial Court, vide order dated 21.12.2022, allowed the
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application seeking leave to defend, subject to the appellants
depositing an amount of Rs. 37.82 lacs before the Court. The
relevant portion of the order is reproduced hereunder:
For the reasons discussed hereinabove and taking strength
“
from the case law referred, with all humility, Court having been
satisfied that the defendants have a substantial defence to raise
and the defence intended to be put up by the defendants is not
frivolous or vexatious, the application of defendant Nos. 2, 3 and
4 for leave to defend are allowed subject to depositing amount of
Rs. 37.82 lacs before this Court, which stands released by
Legislative Assembly, Secretariat in favour of Estate Department
as alleged by the defendants. The defendants shall file written
statement within 30 days of this order
.”
07. The appellants, being aggrieved of the order dated
21.12.2022 passed by the learned Additional District Judge
(Bank Cases), Srinagar, challenged the same before this
Court by way of a petition registered as CM(M) No. 39/2023,
which came to be dismissed vide order dated 11.05.2023.
Following dismissal of the aforesaid petition, the Executive
Engineer, Estates Division, Srinagar, vide communication
dated 14.06.2023, sought to deposit an amount of Rs. 37.82
lacs, stated to have been released by the Legislative
Assembly Secretariat in favour of the Estates Department, so
as to enable the appellants to defend the suit in terms of the
conditional leave granted by the learned trial Court.
08. Since against the total allotment of Rs. 37.82 lacs, only
an amount of Rs. 19.01 lacs was made available under MH-
8743 (DCW) in the Sadder Treasury, Srinagar, accordingly,
an amount of Rs. 19.01 lacs was deposited before the
learned trial Court through Cheque No. 893458 dated
26.03.2023. In respect of the remaining amount, the
erstwhile Estates Department, Srinagar, vide
communications dated 15.06.2023 and 04.07.2023,
requested the Treasury Officer, Sadder Treasury, Srinagar, to
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furnish details of the funds available under the aforesaid
head so that the balance amount could also be deposited
before the learned trial Court in compliance with the order
dated 21.12.2022. Since the appellants failed to satisfy the
condition imposed by the learned trial Court for grant of
leave to defend, the learned trial Court, vide judgment and
decree dated 12.08.2023, decreed the suit in favour of the
plaintiffs/respondents for an amount of Rs. 57.23 lacs, along
with interest and costs, in terms of Order XXXVII CPC. The
relevant portion of the judgment is reproduced hereunder:
“ As such this Court has left with no option but to draw
presumption that the defendants especially defendants 1, 2 and
4 failed to fulfill the pre-condition set for leave to defend. Thus in
absence of non-fulfillment of pre-condition set for grant of leave to
defend, the plaintiff is found entitled to decree in his favour to
the tune of Rs. 57.23 lacs along with interest under Order 37
CPC. The suit of the plaintiff under Order 37 CPC is allowed
along with cost in absence of leave to defend. Decree sheet be
prepared accordingly. The suit is accordingly disposed of and be
consigned to records after its due completion. However the
plaintiff is at liberty to withdraw the amount of Rs. 19,01,000/-
from the Court after lapse of appeal period .”
09. The appellants have called in question the aforesaid
judgment and decree primarily on the ground that a
substantial portion of the amount directed to be deposited by
the learned trial Court had already been deposited, but the
said fact was not taken into consideration by the learned
trial Court while passing the impugned judgment and decree,
whereby the suit came to be decreed for the entire amount of
Rs. 57.23 lacs, along with interest. It is further contended
that the learned trial Court failed to take into account the
peculiar circumstances which occasioned in the delay to
deposit the remaining amount and decreed the suit.
10. Heard learned counsel for the parties and perused the
material available on record.
RFA 31/2024 4

11. Perusal of the record reveals that the appellants had filed
an application seeking leave to defend the suit instituted by
the plaintiffs/respondents, in the said application, it was
contended that the plaintiffs/respondents had allegedly
executed works at the MLA Hostel, Srinagar, during the
years 2019-2020, involving a total expenditure of Rs. 57.32
lacs, at the verbal instructions of defendant No. 3. It was
further stated that an amount of Rs. 18.35 lacs was allegedly
incurred pursuant to the verbal directions of the District
Magistrate, Srinagar, during the year 2019, for facilitating
the political leaders who had been confined at the MLA
Hostel following the abrogation of Article 370. The appellants
also asserted that the regular tendering process had not
been followed and that the works had been undertaken at
the request of the Deputy Commissioner, Srinagar. So far as
the works amounting to Rs. 37.82 lacs are concerned, it was
pleaded that the requisite funds had been contributed by the
Legislative Assembly Secretariat and released in favour of the
Directorate of Estates for being placed at the disposal of the
Executive Engineer, Estates Division, Srinagar, and,
accordingly, no public tenders had been invited.
12. The learned trial Court, upon consideration of the
aforesaid application, granted leave to defend the suit to the
appellants, subject to deposit of an amount of Rs. 37.82 lacs
and filing of the written statement within a period of 30 days
from the date of order viz. 21.12.2022. In compliance with
the said direction, the appellants deposited an amount of Rs.
19,01,000/- on 26.03.2023. The remaining amount of Rs.
18,81,000/- came to be deposited on 25.07.2025.
13. It is an admitted position that the suit instituted by the
respondents under Order XXXVII CPC came to be decided
and decreed in their favour on 12.08.2023, much prior to the
deposit of the balance amount of Rs. 18,81,000/- on
25.07.2025. The learned trial Court, having regard to the
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non-fulfillment of the condition imposed vide order dated
21.12.2022, proceeded to decree the suit for an amount of
Rs. 57.23 lacs, along with interest and costs, in favour of the
plaintiffs/respondents.
14. Mr. Illyas Nazir Laway, learned GA appearing for the
appellants, has vehemently contended that the entire
amount of Rs. 37.82 lacs, as directed by the learned trial
Court, now stands deposited, out of which an amount of Rs.
19,01,000/- has already been released in favour of the
respondents. It is, accordingly, argued that the learned trial
Court ought to have permitted the appellants to file their
written statement and afforded them an opportunity to
substantiate their defence. Instead, the suit was decreed
without affording due consideration to the defence sought to
be raised by the appellants.
15. Per contra , Mr. Manzoor Ah. Dar, learned counsel
appearing for the respondents, has contended that the
appellants, in their application seeking leave to defend, had
admitted that the works in question, to the extent of Rs.
37.82 lacs, had been executed by the respondents. It is
further contended that the appellants failed to comply with
the condition imposed vide order dated 21.12.2022 and,
consequently, the suit was rightly decreed on 12.08.2023.
The learned counsel submits that the balance amount was
deposited only in the year 2025, much after passing of the
impugned judgment and decree, and, therefore, the present
appeal is devoid of merit and is not maintainable.
16. Indisputably, the appellants failed to comply with the
condition imposed by the learned trial Court vide order dated
21.12.2022, within the stipulated period. The deposit of the
balance amount of Rs. 18,81,000/- on 25.07.2025, much
after passing of the impugned judgment and decree dated
12.08.2023, cannot be construed as compliance with the
RFA 31/2024 6

direction retrospectively so as to revive the right to defend
the suit. The appellants have also failed to place on record
any cogent explanation justifying their failure to deposit the
balance amount within the time granted by the learned trial
Court. In such circumstances, the learned trial Court cannot
be said to have committed any illegality in decreeing the suit
on account of non-fulfilment of the condition imposed while
granting leave to defend the suit in terms of order dated
12.08.2023.
17. For the foregoing reasons, this Court finds no perversity
or illegality in the order impugned which is upheld.
Consequently, the instant Civil First Appeal, being devoid of
merit, is hereby dismissed .

MOKSHA KHAJURIA KAZMI)
(
JUDGE

Srinagar
.11.2026
“ Sakeena ”




Whether the order/Judgment is reportable: Yes/No
Whether the order/Judgment is speaking: Yes/No
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