Jammu & Kashmir High Court - Srinagar Bench
State Of J&K &Ors vs Gh. Nabi Lone on 15 May, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR C.Rev. No. 122 of 2008 State of J&K &Ors. Petitioners Gh. Nabi Lone Respondents !Mr. Allah-ud-din, Advocate ^Mr. M. A. Qayoom, Advocate Honble Mr. Justice Janak Raj Kotwal, Judge Date: 15/05/2013 : J U D G M E N T :
1. This Civil Revision filed by judgment debtors is directed against the order dated 2.7.2003 passed by ld. Munsiff (Sub Registrar), Srinagar and order dated 9.5.2008 passed by ld. Principal District Judge, Srinagar.
2. Heard. I have perused the record.
3. Briefly, facts relevant for this revision are that a suit filed by therespondent/decree-holder was decreed by the Court of Ld. Munsiff(Sub Registrar), Srinagar by its judgment dated 31.10.1998. The relief granted, which stands incorporated in the decree sheet, reads:
The plaintiff has been able to prove a case in his favour which conforms to the prayer made in the amended suit. In view of the same the following order is passed,keeping in view section 56(D) of Specific Relief Act. The defendants are directed to pay him the emoluments as pay and other service benefits for his working in the department under the defendants. After the so called voluntarily retirements, which he has moved, if he has voluntarily joined his services in the department on the principle s of no work no pay. Also defendants are directed that when the plaintiff has put his services till the date of his superannuation on 1.11.1996. So after retirement of the plaintiff his case be also progressed in terms of service Rules and regulations for future claims by way of gratuity and family pension. The suit is accordingly disposed of.
4. In the application for execution of the decree, which was filed on 2.2.2002, respondent on 10.4.2003moved an application seeking correction in the judgment and decree dated 31.10. 1998 to the extent of deleting the term keeping in view section 56(D) of Specific Relief Act from there. Ld. trial Executing Court after obtaining objections from the petitioners/judgment debtors disposed of this application by the order dated 2.7.2003. In the first part of this order,ld. trial Court in exercise of power under section 47 C.P.C. read with sections 152 & 152-A C. P. C. recast the decree sheet thereby in effect deleting the term keeping in view Section 56(d) of Specific Relief Act from the decree. The recast decree to read as:
The defendants are directed to pay him(plaintiff/decree holder) the emoluments as pay and other service benefits for his working in the department under the defendants,after the so called voluntarily retirements, which he has moved, if he has voluntarily joined his services in the Department on the principle s of no work no pay. Also defendants are directed that when the plaintiff has put his services till the date of his superannuation on 1.11.1996,so after retirement of the plaintiff, his case be also progressed in terms of service rules and regulations for future claims by way of gratuity and family pension.
5. Ld. trial Court,however, did not stop there and in the 2nd part of the order discussed the merit of the case and effected further rectification in the decree. Operative portion of the order passed in this regard needs a reference and is reproduced as:
That being so, the lien as provided under Article 37 of CSR is admissible.Accordingly the controversy is settled in these terms and shall be read as part of rectified decree. The judgment debtors be issued fresh notice alongwith copy of this order to comply with the decree in letter and spirit, failing which this court shall have no option, but to adopt coercive measures. Let file come up for further proceedings on 24.7.2003.
6. Petitioners questioned the order dated 2.7.2003 passed by the ld. trial Court in appeal before ld. Principal District Judge, Srinagar. Ld. District Judge, however, dismissed the appeal holding that no appeal lies against an order passed under section 47 of the C. P. C. and further observing that the appellantsshall not be precluded from calling into the question the order in appropriate proceedings before competent forum.
Hence this revision petition came to be filed before this Court.
7. Ld. Dy. Advocate General, Mr. Allah-ud-din, laid stress to project that ld. trial Court by the impugned order has rewritten the decree and has granted relief more and other than those granted in the original decree or even sought in the suit by the decree-holder. He pointed out that the respondent had sought only the correction in the decree to the extent of deleting the term keeping in view section 56(d) of Specific Relief Act but ld. trial court has virtually modified the entire decree as if the appeal jurisdiction was exercised.
8. Ld. Counsel for the respondents, Mr. M. A. Qayoom, initially supported the impugned order in entirety but in his fairness towards the conclusion of arguments relaxed his support to the second part of the order.
9. Petitioners in this revision have questioned not only the order passed by the ld. trial Court but also the order dated 9.5.2008 passed in appeal by the ld. Principal District Judge, Srinagar where the order of the trial Court in the first instance was challenged in appeal. To say briefly, ld. District Judge haddismissed the appeal holding that the appeal against the order was not maintainable and had left it open for the petitioners to question the order in appropriate forum. It was rather this order that paved the way for the present revision. Perusal of paragraph (xiii) of the grounds stated in the revision petition would show that the order passed by ld. Appellate Court has been challenged only because the said court had dismissed the appeal as not maintainable. Clearly the petitioners have on one hand gone with the order of ld. Appellate court and on the other hand are going against it. I find no error in ld. Appellate Courts view that appeal against the order passed by ld. trial Court was not maintainable. The order passed bythe ld. Appellate Court does not suffer from any error and appeal to that extent is dismissed as without any merit.
10. Coming to the order passed by the ld. trial Court, it is obvious and indisputable that reference to section 56(d) of the Specific Relief Act in the judgment and decree was totally out of context and unrequired. The suit filed by the respondent was one for declaration and additional relief of mandatory injunctions. The mandatory injunctions sought by the respondent could have been granted only if declaration as sought was available. Suit in effect was one far declaration with consequential relief on mandatory injunctions. It was not simply a suit for mandatory injunctions. Section 56 (d) of the Act provides for a bar against granting relief of simple injunction if the case is covered under that section. Here the suit being one for declaration with consequential relief of mandatory injunctions and the trial Court having granted the suit, reference to sec. 56(d) of the Actwas not only out of context, assaid above,but its natural effect was to cause contradiction and confusion in the decree. In this view of the matter, no error or mistake can be said to have been committed by the ld. trial Court in rectifying the decree by deleting from the decree sheet the reference to section 56(d), of the Specific Relief Act. To this extent I find no legal or genuine challenge to the impugned order.
11. However, as said above, ld. trial Court did not stop there and has gone ahead to effect some more rectification/modification in the decree, which, however, has not been found correct and sustainable.
12. While examining and dealing with this aspect of the impugned ordermy attention got attracted towards the order passed by the ld. trial Court on 28.6.2002. In this order ld. Court, while feeling that the decree was vague and does not convey clear sense, had attempted to explain the meaning and purport of the decree passed by the Court, which was correctly done and had set the execution proceedings in right direction. Having done so ld. court had observed that:
The question whether plaintiff has rendered any services in the department after his voluntary retirement, is still open. This is a question, which arises between the parties to the suit, in which the decree under execution has been passed. As per section 47 of CPC, court executing decree, can determine this question with regard to the payment/entitlement of wages of decree holder beyond the date of his voluntary retirementand up to his alleged date of retirement i.e. June, 1996.
13. Ld. Court had thusresolved to tackle the situation in terms of sec. 47 C. P. C. and directed the respondent/ decree- holder to lead evidence on the point and if desired, to produce and lead evidence in this regard through court. Pursuant to this order ld. trial Court was in the process of calling and recording evidence for the respondent/decree-holder.It was during currency of this process that application for correction of the decree came to be filed by respondent on 10.4.2003. What the ld. trial Court,after passing order in the application to the extent of allowing the rectification as sought by the respondent,should have done was to revert back and complete the evidence for both the parties pursuant to the order dt.28. 6. 2002 and then return a finding in backdrop of the said order. However ld. trial Court, while disposing of the application for rectification of the decree and ordering rectification as said above, did not stop there and proceeded ahead by taking all the questions and in effect making further rectification in the decree and directed the judgment debtors to comply with the decree so rectifiedwith a warning of using coercive method if the decree was not complied with.
14. It is thus clear that ld. trial executing Court executing has acted in haste and in utter disregard tothe earlier order passed on 28. 6. 2002. This part of the impugned order, which I call as thesecond part of the order, therefore, is not sustainable and calls for correction in exercise of revisional power of this court.
15. As a sequel of the above, second part of order dated 2.7.2003, commencing from last paragraph at 6th. page, that is, starting as Coming to the second aspect of the decree and ending as to adopt coercive measures. at 8th. page, is set aside.
16. Since lot of time got wasted due to the wrong approach of ld. trial executing Court, it is impressed upon the ld. trial Court to take up the matter expeditiouslyand ensure that proceedings be concluded at an earliest, preferably within a period of six months from the date copy of this order is received .
17. Registry to send back the record of the trial Court alongwith copy of this order.
Disposed of as above.
( Janak Raj Kotwal) Judge Srinagar 15/05/2013 Mujtaba