Jammu & Kashmir High Court
Balbir Singh vs Veena Kour And Others on 9 August, 2023
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on:09.08.2023
CR No. 10/2019
Balbir Singh .....Petitioner (s)
Through: Mr. R. K. S. Thakur, Advocate
Vs
Veena Kour and others ..... Respondent(s)
Through: Mr. P. N. Goja, Sr. Advocate with
Mr. Abhinav Jamwal, Advocate
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGEMENT
01. The petitioner is real brother of the respondent no. 1. The respondent nos. 2 to 4 are the legal representatives of late S. Pritam Singh who was also one of the brothers of the petitioner and the respondent no. 1.
02. By virtue of sale-deed dated 17.09.2021, land measuring 17 marlas in khasra no. 74 and 03 marlas in khasra no. 78 min in village Babliana, tehsil and district Jammu came to be purchased by the petitioner so as to become its own or in possession.
03. The respondent no. 1 - Veena Kour joined by S. Pritam Singh, the predecessor-in-interest of the respondent nos. 2 to 4, 2 CR No. 10/2019 came to file a civil suit for declaration for declaring the sale-deed 17.09.2001 with respect to the aforementioned land in favour of the petitioner as being a benami transaction and further declaring them to be the actual owners in respect of the aforesaid land with consequential relief of restraining the petitioner from transferring the said land in any manner, raising any sort of construction or causing interference in their peaceful possession. This suit came to be taken on file no. 139/Civil of the court of the learned City Judge, Jammu and is the one in issue herein.
04. On 14.03.2008, the respondent no. 1 joined by other family members came to file a civil suit no. 16/Civil before the court of learned Additional District Judge, Baramulla against the petitioner herein, his three brothers and one sister. This civil suit was for declaration and permanent prohibitory injunction with respect to the property situated in Baramulla.
05. Thus, in both the aforesaid suits, the plaintiffs and the defendants are the members of the same family.
06. On 03.04.2008, the parties to the suit no. 16/Civil before the court of learned Additional District Judge, Baramulla came to enter settlement documented in a compromise deed dated 03.04.2008 thereby settling their disputes qua the properties concerning them. Said compromise deed came to be presented for 3 CR No. 10/2019 seeking disposal of said civil suit no. 16/Civil in the court of learned Additional District Judge, Baramulla which came to decree the suit accordingly.
07. In terms of the said decree dated 03.04.2008, the respondent no. 1 even came to lay an execution petition before the court of learned Additional District Judge, Baramulla which execution petition later on came to be transferred to the Additional District Judge, Srinagar in terms of order dated 30.08.2013 passed by this Court in a transfer application and lastly to the court of learned Additional District Judge, Sopore.
08. This execution petition so filed by the respondent no. 1 came to have issues of one kind or other cropping up at the instance of the respondent no. 1 or on the part of the petitioner and others, being party to the execution petition.
09. In terms of an order dated 23.04.2016 the transferee executing court of the learned Additional District Judge, Srinagar directed the Tehsildar Baramulla to implement the compromise decree dated 03.04.2008 in which regard a report dated 16.02.2016 came to be submitted by the Tehsildar Baramulla bearing reference to a report no. 357/NTA dated 13.06.2016 of the Naib Tehsildar confirming the fact that the compromise decree has been implemented on spot. In fact even the respondent no. 1 on 4 CR No. 10/2019 22.08.2016 had come to file an application before the Deputy Commissioner, Baramulla seeking implementation of the compromise decree in letter and spirit.
10. Later on this execution application came to be transferred to the court of the learned Additional District Judge, Sopore which in terms of an order dated 12.10.2017 came to pass direction to seek confirmation to the fact as to one of the properties settled in said compromise deed comprising of four marlas of plot had been given to the respondent no. 1 or not. This order dated 12.10.2017 came to be challenged in a civil revision no. 42 of 2017 by the respondent no. 1 before the High Court of J&K, Srinagar Wing.
11. Insofar as, the civil suit filed by the respondent no. 1 joned by late S. Pritam Singh against the petitioner before the court of the learned City Judge, Jammu is concerned, the petitioner had come to cause his appearance by filing a written statement in December, 2008 wherein the petitioner referred to the fact of compromise decree dated 03.04.2008 passed by the court of the learned Additional District Judge, Baramulla in terms whereof the suit plot forming the subject matter of civil suit no. 139/Civil before the court of the learned City Judge, Jammu had also been dealt with thereby rendering the civil suit of the respondent no. 1 and S. Pritam Singh liable to be disposed of in terms of the said compromise decree. 5 CR No. 10/2019
12. This civil suit of the respondent no. 1 and S. Pritam Singh came to be dismissed in default on 08.09.2009 because of repeated non-appearances on behalf of the respondent no. 1 and S. Pritam Singh after the event of compromise decree dated 03.04.2008 but came to be restored in terms of order dated 11.03.2013.
13. On 02.06.2013, S. Pritam Singh came to demise which resulted in bringing on record his legal representatives i.e. the respondent nos. 2 to 4 herein as co-plaintiffs along with the respondent no. 1 for the said civil suit.
14. In the said civil suit, the issues came to be framed by the court of learned City Judge, Jammu in terms of an order dated 16.04.2014 in which one of the issues came to be framed pertaining to the maintainability of the suit.
15. With respect to this issue as to whether the suit is not maintainable in view of the compromise decree passed by the learned District Judge, Baramulla pertaining to the suit land, the court of learned City Judge, Jammu came to held the same to be a mixed question of law and fact and, thus, deciding it against the petitioner in terms of an order dated 04.09.2015 which came to be questioned in a petition OW104 no. 75/2018 under section 104 of the Constitution of Jammu & Kashmir for supervisory jurisdiction before this Court resulting in setting aside of order dated 6 CR No. 10/2019 21.09.2015 by holding that the said issue can be better adjudicated upon after the parties lead their evidence and not holding that the issue is against the petitioner as had been held by the court of learned City Judge, Jammu.
16. Pursuant to this, the respondent no. 1 came to examine herself as a witness in the suit along with her witnesses whereupon the petitioner came up with an application purportedly filed by reference to Order 7 rule 11 of the J&K Code of Civil Procedure, Svt. 1977 seeking rejection of the plaint/dismissal of the suit by reference to the compromise decree of the court of the learned Additional District Judge, Baramulla.
17. This application of the petitioner came to be declined by the court of learned City Jude, Jammu by virtue of an order dated 24.04.2019 against which the petitioner has come up in the present revision petition before this Court.
18. The court of learned City Judge, Jammu came to decline the plea of the petitioner for rejection of the plaint/dismissal of the suit by citing the reasoning that conditions of Order 7 rule 11 CPS read with Order 12 rule 6 CPC are not satisfied and, therefore, the rejection of the plaint/dismissal of the suit cannot take place.
19. With respect to the invocation of Order 7 rule 11 CPC by the petitioner for seeking rejection of the plaint, the court of learned 7 CR No. 10/2019 City Judge, Jammu came to hold that for that purpose the averments made in the plaint are only to be considered and, therefore, reckoning of the compromise decree of the court of the learned Additional District Judge, Baramulla which is not pleaded in the plaint cannot be afforded as basis for rejection of the plaint. With respect to the application of Order 12 rule 6 CPC, the court of learned City Judge, Jammu came to hold that what is the effect of the said compromise decree with respect to the maintainability of the suit can be decided only after the parties lead their respective evidences on the issues framed and, therefore, there is no occasion for the court to decide the said aspect mid-way without obtaining evidence from the parties.
20. Before proceeding further, this Court needs to set out as to the terms and conditions of the compromise deed dated 03.04.2008 so effected between the parties in the suit before the court of learned Additional District Judge, Baramulla wherein the petitioner and the respondent no. 1 and S. Pritam Singh were also one of the parties. Said compromise deed so presented before the court of learned Additional District Judge, Baramulla is written in Urdu and the operative part of the said compromise deed in its translation means and reads like this that the parties to the suit are real brothers and sisters and to keep the relationship amongst them on cordial note and to avoid any future litigation against each other they have 8 CR No. 10/2019 settled their disputes by virtue of a compromise to which all have subscribed. In terms of the compromise the issue between the respondent no. 1 and others as being the defendants in the civil suit before the court of the learned Additional District Judge, Baramulla came to be settled in the context of the petitioner and the respondent no. 1. It has come to be recorded in the said compromise deed read with decree that the dispute between the respondent no. 1 and the petitioner with respect to the plot in Jammu is also settled in the manner that the respondent no. 1 is to be given by the petitioner 04 marlas of land out of his share of the property in Kanlibagh Khanpora, Baramulla and in lieu the respondent no. 1 will have no concern with the plot in dispute in Jammu.
21. This compromise deed getting translated into a decree of the court of learned Additional District Judge, Baramulla meant that the litigation between the respondent no. 1 and the petitioner here in Jammu and also the litigation which was in the court of learned Additional District Judge, Baramulla was to come to a closure.
22. While the litigation in the court of learned Additional District Judge, Barmulla came to closure by virtue of passing of decree in the suit before said Court but the suit between the respondent no. 1 and the petitioner in the Court of learned City 9 CR No. 10/2019 Judge, Jammu continued to be in running to the extent that even issues came to be framed including that of its maintainability in the light of the compromise deed and intervention of this Court in reversing the finding of maintainability of the suit by observing that maintainability of a suit is mixed question of law and fact which is to be decided after evidence led by the parties in the suit.
23. It is only after the respondent no. 1 came to be examined as a witness in the case before the Court of learned City Judge, Jammu while in her examination-in-chief affidavit made no whisper by any stretch of reference and mention about the compromise deed so effected and only in her cross examination, the respondent no. 1 came to admit that the suit property in the civil suit before the court of the learned City Judge, Jammu is also forming part of the compromise effected in the civil suit before the court of learned Additional District Judge, Baramulla.
24. In addition, the court of learned Additional District Judge, Sopore, which is seized of the execution petition file of none else than the respondent no. 1 with respect to the compromise decree dated 03.04.2008 of the Additional District Judge, Baramulla, came up with a long term order dated 12.10.2017 to hold therein that the respondent no. 1 had come to be given four marlas of land from the petitioner's end. The court of learned Additional District Judge, Sopore came to take a strong notice of the fact that the respondent 10 CR No. 10/2019 no. 1 being an Advocate cannot be allowed to blow hot and cold and project herself as a pedestrian in terms of knowledge of law and litigation.
25. It is in light of this factual background that the petitioner came to seek the disposal of the civil suit through the medium of said application which might not be carrying a proper nomenclature of its identification as to provision of law same was being filed but the fact remains that it was incumbent upon the Court of learned City Judge, Jammu to have read the case not only by the lines, between the lines but also behind the lines to come to understand that if a compromise deed has been effected before a court of superior jurisdiction that being the Additional District Judge, Baramulla resulting in passing of a compromise decree leading even to its execution and connecting the contents of the compromise deed to the suit property forming the subject matter of the suit before it, then where was left any scope for doing any further with respect to trial of the civil suit and that too for what end. The trial court seems to have missed this entire script from its focus and went into technicalities in exploring under which provision of law the disposal of the suit can take place by reference to Order 7 rule 11 CPC read with Order 12 rule 6 CPC least conscious of the fact that the litigation is not a matter of abuse for a litigant to indulge in and for that even the inherent jurisdiction of a civil Court reserved 11 CR No. 10/2019 under section 151 the Civil Procedure Code, 1908 (erstwhile Jammu & Kashmir Civil Procedure Code, 1977) is a clear jurisdiction available at the disposal of the learned City Judge, Jammu to have simply held the disposal of the suit to take place in the light of the compromise deed so effected between the respondent no. 1 and the petitioner before the court of the learned Additional District Judge, Baramulla ending with a compromise decree, without bothering any further as to whether the said compromise deed has infact been respected/disrespected by any of the parties to the said compromise deed and the decree.
26. Thus, if the parties to the suit had themselves invited a judgement qua the suit property by way of compromise deed even if before the court of Additional District Judge, Baramulla it was not to be of any concern for the trial court of learned City Judge, Jammu to hold on to any botheration by any stretch of reasoning and imagination so as to get involved to adjudicate on merits the suit because of intervention of the compromise deed so made between the respondent no. 1 and the petitioner, particularly when the respondent no. 1 had not bothered to seek any amendment of her civil suit post the compromise deed/compromise decree dated 03.04.2008 so as to save her suit from getting hit by the effects of the said compromise deed.
12 CR No. 10/2019
27. Infact, the respondent no. 1 and also her co-plaintiff - S. Pritam Singh could not have excused themselves out of the said compromise decree by continuing with the present civil suit in its present form. Therefore, the continuation of the suit is nothing but an abuse of process of law undermining the very spirit of amicable settlement and compromise between the parties in the course of a civil litigation, therefore, the order passed by the learned City Judge, Jammu is bad in the eyes of law and the suit of the respondent no. 1 and S. Pritam Singh against the petitioner before the Court of learned City Judge, Jammu ought to have been disposed of by the said court in the light of the compromise decree so passed by the Court of learned Additional District Judge, Baramulla and so far as the said decree read with the compromise deed between the parties to the suit related to the suit property in the matter before the court of learned City Judge, Jammu.
28. Accordingly, the impugned order dated 24.04.2019 on file no. 152-A passed by the Court of learned City Judge, Jammu is set aside with a consequent direction to the Court of learned City Judge, Jammu to dispose of the suit by passing a decree on the same text and context as done by the Court of learned Additional District Judge, Baramulla in passing the decree dated 03.04.2008 and for this purpose the petitioner to produce certified copy of compromise deed and decree on the file of the suit whereupon the 13 CR No. 10/2019 Court of learned City Judge, Jammu need not even wait for the examination of the petitioner and the respondents as being the parties to the suit for disposal of the suit.
29. Any issue between the respondents and the petitioner qua post compromise deed/decree is a matter to be sorted and settled by them by an appropriate course of legal proceedings but by no stretch of reasoning by continuation of the suit before the Court of learned City Judge, Jammu.
Disposed of accordingly.
(Rahul Bharti) Judge Jammu 09.08.2023 Muneesh Whether the order is speaking: Yes Whether the order is reportable: Yes