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2000 DIGILAW 143 (JK)

Riyaz Jan Mast v. Asif Javid And Arshid Ahmad

2000-07-18

G.D.SHARMA

body2000
1. Through the medium of this revision petition the petitioner has challenged the order dated: 21-06-2000 passed by the learned Sub Judge (CJM, Srinagar) whereby he allowed the application of the respondents made therein under Order 13 Rule 10 CPC and directed the Assessing Authority of the Sales Tax Department to send the record of the firm known as M/S Indian Metal Mart, Hari Singh High Street, Srinagar.� The record comprised of form-C and statements of accounts from 1984 to 1998. In the alternative to supply the certified copies of the above stated record was also ordered. This order was passed in the suit which was filed by the respondents on 01-05-2000 for the relief™s of declaration, partition and possession. The suit was accompanied by application made under order 13 Rule 10 CPC wherein the impugned order was passed. The petitioner made application for the vacation of the above said order by pleading that High Court had stayed the operation of the order dated: 29-02-2000 passed by the District Judge whereby permission had been granted to the respondents to file the civil suit but this plea did not find favor with the trial court. 2. Heard the arguments. 3. The learned counsel for the petitioner has contended that the order passed by the trial court is inherently bad because it has been passed without deciding the objections of the respondent with regard to the jurisdiction. The finding of the trial Judge that Sales Tax Assessing Authority is also a court is patently wrong because u/s 2 of the General Sales Tax Act, 1962 Assessing Authority means any person appointed by the Govt. under section 3 to exercise the powers and perform the functions of the assessing authority under the Act and includes an officer-in-charge of a check post or Notified Area. Under section 22 of the said Act, the commissioner and the appellate authority for the purpose of the Act, have the same powers as are vested in a court under the Code of Civil Procedure, when trying a suit in respect of the following matters, namely; to enforce the attendance of any person and examining him on oath or affirmation; compelling the production of documents and issuing commissions for the examination of witnesses. For the purpose of civil court there should be a Judge and not an Assessing Authority. For the purpose of civil court there should be a Judge and not an Assessing Authority. The term Judge� has been defined under section 2 of the CPC which means the presiding officer of the Civil Court. Section 3 CPC classifies the civil courts for sub-ordinate and states that the District court is subordinate to the High Court and every civil court of a grade inferior to that of a District court and every court of Small Causes is subordinate to the High Court and District Court. From its reading it transpires that only four types of courts- are recognized and they are; 1. High Court 2. District Court 3. Every Civil Court 4. Every Small Causes Court. Under order 13 Rule 10 CPC reference to the term court is always made to a court as defined and mentioned in sections 2 and 3 of the CPC. That no reason has been assigned in the impugned order why summoning of the record was required. Concluding his arguments, the learned counsel has contended that the impugned order is erroneous on its face because it is passed without jurisdiction. 4. In rebuttal, it has been contended by Mr. Farooqi that under section 9 of the CPC. The Civil Court has jurisdiction to try all suits of a civil nature except those suits the cognizance whereof is either expressly or impliedly barred. Section 17 of the Succession (Property Protection) Act saves the right to bring regular suit by either of the parties whose application has been rejected or accepted. That in case the order passed by the District Judge, under Succession (Property Protection) Act has been stayed, the stay order will not bind a party to file a suit if his right is infringed because that is a statutory right. That Sales Tax Assessing Authority is a court as has been defined U/s 22 of General Sales Tax Act. U/s of the CPC only two types of courts have been recognized and they are of the category of Civil Courts and Revenue Courts. That Sales Tax Assessing Authority is a court as has been defined U/s 22 of General Sales Tax Act. U/s of the CPC only two types of courts have been recognized and they are of the category of Civil Courts and Revenue Courts. The Assessing Authority has all the trappings of a civil court because u/s 22 of the General Sales Tax Act, the Commissioner and the appellate authority as defined under the section for the purpose of the Act have the same powers as are vested in a court under CPC when trying a suit in respect of the following; a. enforcing the attendance of any person and examining him on oath or affirmation; b. compelling the production of the documents and c. issuing commissions for the examination of the witnesses. Under order 13 Rule 10 CPC, the court has wide powers to call for the record not only from a civil court or Revenue Court but from such an authority which has the trappings of a court. The term .used herein is of general sense and not in restricted sense. The court for the purpose of administering justice comes to the rescue of a party who has no documents or record in his possession but is very essential for the just decision of the case. Lastly, it is contended that now the respondents have received the certified copies of the record which is being summoned and they can produce it in the court. The impugned order is only of interlocutory nature and does not fall within the definition of the case decided� as contemplated U/s 115 CPC. The impugned order does not suffer from jurisdictional error. 5. The point which falls for consideration and determination at the thresh-hold is whether the order passed by this court staying the operation of the order of the learned District Judge could legally debar the petitioner from filing the civil suit in case the relevant law permitted him. Undoubtedly, this court in civil revision petition No. 6/2000 had stayed the operation of the order dated: 29-02-2000 passed by learned District Judge, Srinagar in proceedings initiated before him under the Succession (Property Protection) Act, 1977 wherein he had also given the liberty to the respondents to agitate their rights with regard to the properties through a civil suit. Undoubtedly, this court in civil revision petition No. 6/2000 had stayed the operation of the order dated: 29-02-2000 passed by learned District Judge, Srinagar in proceedings initiated before him under the Succession (Property Protection) Act, 1977 wherein he had also given the liberty to the respondents to agitate their rights with regard to the properties through a civil suit. The learned counsel has contended that operation of the order of learned District Judge had been stayed so the filing of the present suit amounted to the Commission of the contempt of the court and the trial court illegally took cognizance of the case and any proceedings held in that suit are deemed without jurisdiction. This specious argument is not tenable under law. It is a cardinal principle of law that no injunction order can be issued against a statute. Section 17 of the Succession (Property Protection) Act, 1977 reads as under:- Nothing in this Act contained shall be an impediment to the bringing of a regular suit either by the party whose application may have been rejected before or after citing the party in possession, or by the party who may have been evicted from the possession under this Act.� 6. The language of the section is crystal clear that either of the party of a proceedings has a statutory right to file a suit in the civil court. It cannot be said with any reason that respondents herein were only clothed with a legal right to file the suit on the directions of the learned District Judge contained in the order dated: 29-02-2000. Section 9 of the CPC gives a plenary power to the courts to try all suits of a civil nature except the suits the cognizance of which is either expressly or impliedly barred. In the presence of such a legal position the argument advanced pales into insignificance. 7. The other argument advanced by the respondents for the production of record. In other words, non-compliance of Sub Rule 2 of Rule 10, order 13 CPC has been stressed. It is noted with significance that object of this rule is to arm the court with a power to arrive at the spot of the controversy. In the case of Fakir-ud-din Vs. Hossein Bibi (32 P.R. 1874) the record of a criminal case was allowed to be inspected under this provision of law. It is noted with significance that object of this rule is to arm the court with a power to arrive at the spot of the controversy. In the case of Fakir-ud-din Vs. Hossein Bibi (32 P.R. 1874) the record of a criminal case was allowed to be inspected under this provision of law. The argument that the record has been called from the Sales Tax Assessing Authority which is not a civil court in case accepted then a civil court will be left high and dry in ordering the production of any relevant record for the purpose of evidentiary value from any authority except from a civil court. This narrow interpretation will lead to curtailing the jurisdiction of the civil court which is against the scheme of administering justice. The trial court has ordered summoning of official record of proceedings of an authority constituted under the statute which has all the trappings of a court under that Act. It is also noted that the production of the record has been ordered before the settlement of the issues and the inhibition contained in order 13 Rule 2 CPC is not attracted. The court has yet to see its admissibility or inadmissibility as per the scheme contained in order 13 Rule 3, 4, 5, 6, & 7 CPC. The trial court had not passed any order except the calling of the record and this order does not equally itself as a case decided� as is contemplated U/s 115 CPC. No right of either of the party has been determined. The trial court has exercised the jurisdiction which was vested in it under law and no mis-carriage of justice has been done. In this view of the mater, the petition has been found without any substance which is accordingly dismissed.