Jammu & Kashmir High Court
Prithvi Raj vs Ram Duitta And Anr on 11 May, 2009
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. C Rev No. 223 OF 2007 Prithvi Raj Petitioners Ram Duitta and anr. Respondent !O.P. Sharma. ^D.K. Khujuria. Honb�ble Mr. Justice Muzaffar Hussain Attar, Judge. Date: 11/05/2009 :J U D G M E N T :
This petition calls into question order dated 17.12.2007, passed by Addl. District Judge, Jammu, in Civil Misc. appeal titled Ram Ditta v. Prithvi Raj and anr. In order to appreciate the controversy the facts are briefly summarized as under:
The petitioner instituted civil original suit against the respondents praying therein that a decree for permanent injunction be passed in favour of the petitioner and against the respondents restraining them for causing interference into the peaceful cultivating possession of land measuring 2 kanals 11 marlas covered by survey No.943 min and 3 kanals 3 marlas covered by survey No.944 min situated at Village Paloura Tehsil Jammu. The suit after presentation in the court of District Judge Jammu, was transferred to the court of First Addl. Munsiff Jammu. The respondents were put to notice. They filed their written statement. The respondent No.1 in his written statement has stated that he is in possession of land measuring 1 kanal 1 marla covered by survey No.944 min situated at village Paloura Tehsil and District Jammu.
Further it is stated that this land has been mutated in his favour under section 8 of Agrarian Reforms Act of 1976. In the written statement the respondent No.1 has no where raised objection thereby questioning the jurisdiction of the court to try and hear the suit on the plea that the authorities under the Agrarian Reforms Act 1976 alone can deal with such type of cases. Respondent No.1 has stated that the suit is not maintainable because the petitioner is not in possession of land in question. The learned trial Judge after hearing the parties passed an order dated 19th August 2002, whereby and where under the order dated 4th April 2001 directing the parties to maintain status quo on spot in respect of the suit land was made absolute till disposal of the main suit. The learned trial judge has considered the prima-facie case, balance of convenience and irreparable injury and after referring to revenue records passed the order. The said order came to be challenged in Civil First Misc. Appeal which appeal was heard and decided by Addl. District Judge Jammu vide order dated 17.12.2007. The first appellate court set aside the order of trial court and directed the learned trial court to take note of the law laid down in case titled Zulfkar Ali Shah v. Alam Shah, reported in 2006 (1) JKJ 582(HC).
Heard learned counsel for parties. Considered the matter. It is settled position in law that the orders of injunction are passed or refused strictly in accordance with the principals governing issuance or otherwise of said orders; viz existence of prima facie case, balance of convenience and irreparable injury. The courts while considering the interim injunction applications have to follow the said settled principals. The learned trial court in the facts and circumstances of the case considered the said principals of law and came to a prima-facie conclusion that parties require to maintain status quo in respect of the suit property till final disposal of the same.
In the Civil Misc. Appeal the first appellate court was required to consider whether the said settled principals have been properly and rightly applied to the facts of the case. The ld. First appellate court has not adverted to this legal aspect of the case. The ld counsel for respondent submit that the suit is not maintainable being barred by Provisions of Agrarian Reforms Act of 1976. The ld. First appellate court has set aside the order of the trial court only by stating that subject matter of the suit is covered by provisions of Agrarian Reforms Act. The suit may not be competent.
The objections about the maintainability of the suit on the premise that same is barred by provisions of Agrarian Reforms Act of 1976 was never taken by respondents in the written statement before the trial court. The respondent No.1 had challenged the maintainability of the suit on the plea that the petitioner is out of possession of the suit property. The objection of non- maintainability on the ground of being barred by Provisions of Agrarian Reforms Act 1976 had not been raised before the trial court in written statement. The said objection has been raised for the first time before the first appellate court that too in civil misc. appeal.
Right to institute the suit inheres in every person and this right is recognized in common law. Section 9 of the CPC also recognized such a right. The suit when once instituted in a civil court can of course be rejected or dismissed at threshold stage if an objection is raised that same is barred by any statute or the court is lacking jurisdiction. The objection as and when raised before the trial court casts a duty on the said court to frame an issue and return a finding on the same. A Civil court has power to rule as to whether it has jurisdiction or not to try or hear the suit. In this case no objection has been raised in the written statement about the jurisdiction of the court, the issue could not be raised in the civil misc. appeal against an order of injunction. The order passed by first appellate court is rendered illegal and is passed with irregularity. The first appellate court in a civil misc. appeal had to consider the order impugned before it, on the settled principals of law, viz the prima-facie case, balance of convenience and irreparable injury, the ld. First appellate court has not dealt with these principals of law which renders the order of the first appellate court wholly without the jurisdiction. The order of the first appellate court in these circumstances is set aside. The issue of jurisdiction concerning the court being fundamental issue cannot be decided in an ancillary application and in a civil misc. appeal. If such issue comes up in ancillary application the court shall deal the same in the main case before considering the ancillary application for passing of appropriate orders in accordance with law. Ld counsel for respondents submit that he will amend the written statement to take the plea of non-maintainability of the suit before the trial court. Ld counsel to lay a motion before the trial court and trial court will consider and dispose of the same in accordance with law.
As and when the suit is instituted before the civil court, a statutory duty is cast on the court itself to consider the pleadings of the case and to find out as to whether the suit is competent and maintainable. May be at threshold stage the court may find that because of some legal defect the suit is not competent then the court is under statutory obligation to reject the plaint in- terms of O 7 rule 11 CPC. The principal underlying 0 7 rule 11 CPC is to stop the litigation at initial stage which litigation on same grounds would be dismissed even after long drawn trial of case.
This Court in C. Rev. No. 118 titled M/s Three Star Enterprises v. State of J&K and ors decided on 22.12.08, while considering the impact of O 7 R 11 of proceedings as interalia held as under:
b� Before adverting to the legality or otherwise of the impugned order, it would be appropriate to refer to some of the provisions of Code of Civil Procedure which the trial court appears, has not adverted his attention to. The Court of law where any case is filed has not to act mechanically, but has to consider the case so filed, suit instituted on the basis of the law occupying the field. It is statutory duty of the court/Judge to satisfy itself about the competence and maintainability of suit before it orders issuance of notice to the otherside. Reference is made to section 26 and 27 of CPC:-
b� 26. Institution of suit.
Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
27. Summons to defendants.
Where a suit has been duly instituted, a summon may be issued to the defendant to appear and answer the claim and may be served in manner prescribed.b� Order 7 Rule 11 relates to the power of the court to reject the plaint. b� 11. Rejection of plaint.
The plaint shall be rejected in the following cases.-
(a)Where it does not disclose a cause of action;
(b)Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c)Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d)Where the suit appears from the statement in the plaint to be barred by any law.
1[Provided that time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]b� A conjoint reading of all these provisions make it writ large on the face of the Statute that the court where the suit is instituted is duty bound, at the time of institution of the suit itself to consider the pleadings made therein, so as to find out as to whether the suit is competent in law and whether notice requires to be issued to the defendants or the suit is barred by any statute and plaint requires to be rejected. This statutory duty when complied with by the learned Judge will ensure at the threshold proceedings, the weeding out of those cases which even at itb�s final stage will be dismissed for the same reasons and on the same ground, on which it can be rejected at initial stage. The trial Judge, however is duty bound to hear the plaintiff before rejecting the plaint for any of the legal limitations/ constraints/ impediments. While following the statute in itb�s letter and spirit the learned judge will ensure that only those cases which require adjudication occupy the precious time of the court, which otherwise, is public time and other cases which are barred by same statute or do not disclose any cause of action do not impinge upon the public time and do not waste the court time as well.b� The trial court in view of the law laid down by this court in above referred case as also in case titled Zulfkar Ali Shah v. Alam Shah and ors reported in 2006(1) JKJ 582 (HC), will consider as to whether the case of the plaintiff is maintainable in view of the provisions of J&K Agrarian Reforms Act 1976. The ld. Trial court shall afford an opportunity of hearing to the parties. This duty is primarily of the trial court and trial court may not wait for the respondent-defendant to amend his written statement and then to frame issue for deciding such question. It is only when issue cannot be decided without recording evidence, then issue is to be framed and decided.
The petition is accordingly disposed of. Parties are directed to appear before the trial court on 18th April 2009. Record be send back.
Jammu (Muzaffar Hussain Attar) 07.05.09 Judge ayaz