A defendant's application for leave to defend must be considered on its merits and cannot be dismissed for non-prosecution.

JUDGMENT :

1. Through the medium of present appeal, the appellant has challenged judgment and decree dated 16.03.2023 passed by the Court of learned Additional District Judge, Pulwama, in a suit filed by respondent against the appellant. By virtue of the impugned judgment and decree, the respondent/plaintiff has been held entitled to recovery of an amount of Rs.7,32,000/ along with interest @6% per annum from the appellant/defendant in a suit filed by the respondent against the appellant under Order 37 of Civil Procedure Code .

2. It appears that the respondent/plaintiff had filed a suit for recovery of an amount of Rs.7,32,000/ against the appellant/defendant by invoking the provisions contained in Order 37 of the Code of Civil Procedure. According to the respondent/plaintiff, the appellant/ defendant had purchased cardboard boxes from him and after settlement of accounts, the defendant had to pay an amount of Rs.7,82,000/ to the plaintiff. In discharge of the said debt, the defendant is stated to have issued six cheques for a total amount of Rs.7,82,000/ on different dates but when these cheques were presented for encashment, the same were returned unpaid to the plaintiff on account of insufficiency of funds. A legal notice of demand is stated to have been served by the plaintiff upon the defendant but he paid only an amount of Rs.50,000/ to the plaintiff and rest of the amount i.e. Rs.7,32,000/ remained outstanding, which has not been paid by the defendant to the plaintiff constraining him to file the suit against the defendant.

3. It appears that after service of summons upon the defendant in the prescribed proforma, he caused his appearance and filed the memo of appearance indicating therein his address. Thereafter the summons for judgment was served upon the defendant and in response, he filed an application for leave to defend the suit before the trial court. However, when the defendant failed to cause appearance before the trial court, his application for leave to defend was dismissed in default on 06.12.2022.

4. It appears that the defendant filed an application seeking recall of order dated 06.12.2022 on the same very date but the said application was dismissed by the learned trial court on 27.02.2023. Since application of the defendant seeking leave to defend was dismissed by the learned trial court for non-prosecution, as such, the trial court proceeded to pass impugned judgment and decree by presuming that the defendant has not applied for leave to defend the suit.

5. It also appears that the defendant moved an application under Order 37 Rule 4 CPC before the learned trial court seeking setting aside of the exparte decree passed by the said court. However, the said application came to be dismissed by the trial court on 04.07.2024 on the ground that the same has been filed beyond the prescribed period of limitation.

6. The appellant has challenged the impugned judgment and decree passed by the learned trial court on the ground that the court has dismissed his application for leave to defend in default of his appearance and not on merits, which is impermissible in law. It has been further contended that it was incumbent upon the trial court to adjudicate the defence raised by defendant in his application for leave to defend before passing the decree against him. It is also contended that the appellant/defendant had raised a plausible defence in his application for leave to defend and, as such, the same could not have been dismissed by the trial court for non-prosecution.

7. I have heard learned counsel for the parties and perused record of the case including the grounds of appeal.

8. Before proceeding to deal with the