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2004 DIGILAW 303 (JK)

Ab. Rahim Shoru v. Jawahir Lal Koul Jalali

2004-10-28

NISAR AHMAD KAKRU

body2004
Respondent No. 1 on the one hand had to migrate due to turmoil the valley is going through and on the other he is deprived of his proprietary rights by Naib Tehsildar Buchhwara by sheer stroke of his pen without hearing him, obviously, the old adage `misfortunes never come alone is aptly attracted traceable to order of mutation dated 28-06-1992 passed against a dead person namely Pandit Prem Nath Jalali favoring another dead person namely Sidiq Bhat one of the beneficiaries of the mutation. Being aggrieved, the order came to be challenged before the Financial Commissioner which was resisted on the ground of being barred by limitation but the objection could not sustain, consequently turned down by order dated 13-08-2003. It is the said order which is impugned by medium of this writ petition contending that appeal has to abate, for, some of the tenants were dead on the date of institution of appeal. To bring home the point, the learned counsel for the petitioner has relied upon the judicial decisions, relevant paras thereof are extracted here under: Band of Commerce Ltd. Khulna versus Protap Chandra (AIR (33) 1946 Federal Court 15). ".The proper test to be applied in dealing with such cases was adopted by the Allahabad High Court in 54 ALL.280. The learned Judges there said: "We can find no justification for holding that ignorance of the death, in the absence of negligence or other act or commission for which the applicant can be held to be responsible, should not be held to the sufficient cause within the meaning of the Limitation Act." Judged by this test the delay up to 6th February 1945 must be held to have been satisfactorily explained." State of West Bengal versus Manisha (AIR 1965 Calcutta 459). Paras 10 & 15: "10. In order to prefer and appeal against a decree obtained by a person, who was dead at he time of the filing of the appeal, it would be necessary to make his heirs or legal representative respondents to the appeal. The factum of the death of the decree-holder and names of his heirs or legal representatives may be incorporated for greater safety, in an affidavit accompanying the memorandum of appeal against the heirs of the person, who had obtained the decree. 15. The factum of the death of the decree-holder and names of his heirs or legal representatives may be incorporated for greater safety, in an affidavit accompanying the memorandum of appeal against the heirs of the person, who had obtained the decree. 15. In the result the appeal shall be treated as presented against the heirs of the deceased sole respondent only on April 8, 1963, and the delay in filing the appeal condoned.....The order of admission of the appeal, already made, shall be deemed to be an order made in the appeal as presented against the heirs of the deceased respondent, as if the matter was before us to-day and admitted according to law. United Commercial Bank versus Dharam Paul Singh (AIR 1989 Himachal Pradesh 56). Paras 3&4: "3. There cannot be two opinions about the proposition of law that the civil suit having been filed against a dead person cannot be deemed to be a proper suit against his legal representatives. It is further well settled that the provisions of O.22, R.4, CPC. Cannot apply to a situation like this for the simple reason that defendant 2 was not alive on the day when the suit had been instituted. It is only if a defendant dies during the pendency of the suit that the said provisions can be invoked. The above position still leaves the question as to whether legal representatives of defendant 2 can be now added as parties in this very civil suit or not under the provisions of O.1.R, 10, CPC read with S. 153, CPC." 4. In my view, there is no legal impediment in bringing on record the legal representatives of a dependent who is shown to have died before the filing of the original suit for the simple reason that the plaintiff could in any case institute a fresh suit against those legal representatives on the day he moves an application for making them parites....." Mohamed Ibrahim and others v. Chellammal, AIR 1991 Madras 310. Paras 3 & 4: "3. This Court had on prior occasions pointed out that Rule 84 of the Civil Rules of Practice should be strictly followed and adhered to by the subordinate judiciary, unfortunately this has not been done in the present case also. Paras 3 & 4: "3. This Court had on prior occasions pointed out that Rule 84 of the Civil Rules of Practice should be strictly followed and adhered to by the subordinate judiciary, unfortunately this has not been done in the present case also. Under rule 84 of the Civil Rules of Practice, the judgement of the court shall be headed and drawn up in the manner as a decree and shall also state the dates on which the case was heard as in Form No. 24 and a list of exhibits filed and witnesses examined shall be annexed there to. The language of the rule is mandatory. The Subordinate Courts are bound to annex a list of witnesses and a list of exhibits to the judgement. 4. Though the contention put forward by the petitioners is correct in law, I am of the view that interests of justice require that an opportunity should be given to the respondent to prosecute the appeal as against the legal representatives of the deceased defendant after condoning the delay. It is possible to allow this revision petition and direct the respondent to file a fresh appeal with an application for condonation of delay. That would only mean further proceedings and further delay. In order to avoid multiplicity of proceedings and in the interest of justice, I am of the view that the procedure can be suitably modified and appropriate orders can be made in this revision petition itself." Ali Mohammad Khan versus Vijay Tulsi (AIR 1986 J&K 26), paras 4,5 & 6: "4. In Hira Lal v. Kalinath, AIR 1962 SC 199, Chief Justice Sinha, speaking for the Court opined: -- "The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking inherent jurisdiction in the sense that it would not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed." 5. In view of the aforesaid pronouncement of the Supreme Court, the question referred to it in the earlier part of the judgement must be answered in the negative and it must be held that where a suit is filed against a dead person it is a nullity and the plaintiff cannot be allowed subsequently to amend the suit and substitute the legal representatives in place of the defendant. It appears that the observations of the Supreme Court were not brought to the notice of the learned Single Judge when the case was referred to the Division Bench. 6. In view of what has been said above, this revision petition must succeed and it is hereby allowed. The order of the learned Sub Judge, City Magistrate, Srinagar, dated 21st of November, 1977 allowing the substitution of the defendant who had died before the filing of the suit against him by his legal representatives, being an order without jurisdiction is hereby quashed." 2. In Bank of Commerce Ltd. Khulna versus Protap Chandras case the court has dealt with sufficiency of cause within the meaning of Limitation Act. State of West Bengal versus Manisha is a case where court has not only condoned the delay but has treated it to have been admitted even against legal heirs although they were not party. In United Commercial Bank verus Dharam Paul Singhs case, court has brought the legal representatives on record. In Mohammad Ibrahim versus Chellammall, the court has deviated from the procedure totally to avoid further delay in disposal of the lis. I dont find any direction towards abatement and none of these judgements lends any help to the contention of abatement. Much emphasis was laid by learned counsel for the petitioner on Ali Mohammad Khan versus Vijay Tulsi. Perusal of the mandate of the judgement makes it very clear that suit against a dead person is a nullity. In the case on hand prayer for effecting mutation was made by the petitioner against a dead person and the prayer was granted, resultantly mutation effected. Applying the principle, the very motion for mutation is uncalled for. Fact of the matter is that there is unanimity of opinion of the effect that procedure can be modified when ends of justice demand so. Applying the principle, the very motion for mutation is uncalled for. Fact of the matter is that there is unanimity of opinion of the effect that procedure can be modified when ends of justice demand so. Examining the order of the Financial Commissioner on the touch stone of the judgements referred to above, condonation of delay was called for and no fault can be attributed to the Financial Commissioner who has proceeded in the direction of undoing an illegality which is recognized as the most appropriate course by the apex court even where the courts lack jurisdiction. In this behalf it will be relevant to refer to para 7 of Mohd. Swalleh v. IIIrd AddI. Dist. Judge, Meerut, AIR 1988 SC 94 which may be noticed: "7. It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid before the District Judge, the order of the Prescribed Authority was invalid and it was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Art. 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set aside. Therefore, in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Act. 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken." 3. I would now like to examine the matter from the angle of procedure the Naib Tehsildar was required to follow. 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken." 3. I would now like to examine the matter from the angle of procedure the Naib Tehsildar was required to follow. In this behalf rule 14 of the J&K Agrarian Reforms Rules 1977 assumes significance which may be extracted: "14. Procedure and competence for attesting mutations (1) Mutations under this Chapter shall, subject to the provisions herein contained, be attested, in accordance with the procedure provided by Standing Order No.23-A, by a Revenue Officer, in or near the village to which these pertain. [Provided that no Naib-Tehsildar shall attest any disputed mutation or any other such mutation where change or correction of any entry of Khasra Girdawari is involved unless he is empowered for the said purpose by the Commissioner appointed under section 18 of the Act. (2) Ex-parte proceedings on mutations, even if permitted shall be avoided, as far as possible, and where such proceedings are taken in accordance with law, the mutation order and the record accompanying such mutation, shall show that sufficient steps were taken to give notice to the person against whom such proceedings have been taken." 4. Sub rule (1) rule 14 of the J&K Agrarian Reforms Rules 1977 attracts the application of the procedure envisaged by Standing Order No. 23-A for purposes of mutations attested under the Agrarian Rules, therefore, reference to relevant clauses of Standing Order No. 23-A has become necessary which may be noticed: "36. Attendance of parties. -- When satisfied that the entries and reports are in order, the Revenue Officer should see whether the parties (and their witnesses in case of dispute) and the Lambardar are present. If the parties or any of them are not present, the Revenue Officer should give them a further opportunity to attend, and may summon them specially on the occasion of his next visit, should he think proper. If any person whose attendance is necessary is absent from the village but his return within a few months is expected, then the case should be postponed. 37. Interrogatories. If any person whose attendance is necessary is absent from the village but his return within a few months is expected, then the case should be postponed. 37. Interrogatories. -- If the address of the absentee is known; and early return is not expected, steps should be taken to record his statement by Band Sawal to be forwarded to the Tehsildar of the Tehsil concerned, or to the superior officer of the absentee, if he is in service, direct or through the higher authorities, if necessary, according to the orders in force." 5. A bare perusal of sub rule (2) rule 14 of the J&K Agrarian Reforms Rules 1977 reveals that an obligation is cost upon the authorities to avoid ex-parte proceedings on mutations as far as possible and where proceedings are taken in accordance with law, it has to be shown from the order itself that steps were taken to put on notice the person against whom the proceedings have been taken which is wanting in the order of mutation passed by the Naib Tehsildar. The order does not indicate any steps whatsoever towards procurement of attendance of owner of the land. Standing Order 23-A also envisages almost same course of action, providing further for recording the statement by Band Sawal with the objective to rule out probability of being condemned unheard. A conjoint reading of aforementioned provisions of law admits no ambiguity to the effect that the authority competent to attest the mutation is bound to take effective steps to ensure participation of a person against whom proceedings of mutation are initiated which has not been done, thus observing the statue in breach. 6. In view of the gist of the decisions and interpretation I have gone for in respect of the judgements supra, the learned counsel for the petitioner was pointedly asked to apprise the Court about the justification he has to urge to defend the mutation but he could put forth none excepting that the order of mutation has become final due to delayed institution of the appeal. The argument is advanced simply to be rejected because delay stands already condoned by the Financial Commissioner and the indulgence so displayed being correct in law has received approval of this court for the reasons detailed in para 2 hereinabove. No other argument was advanced in defence of the mutation. The argument is advanced simply to be rejected because delay stands already condoned by the Financial Commissioner and the indulgence so displayed being correct in law has received approval of this court for the reasons detailed in para 2 hereinabove. No other argument was advanced in defence of the mutation. Dealing with the incompetence of the Naib Tehsildar in terms of Rule 14 of Agrarian Reforms Rules 1977 to attest the disputed mutation, learned counsel for the petitioner submitted that the Naib Tehsildar was invested with the power but he could not produce any documentary proof on that count despite sufficient opportunity yet I would like to skip over this aspect because mutation is incapable of execution for the reasons detailed hereinbefore and those which follow hereinafter, thus objection claiming the order of mutation to be final fails. 7. Being of the considered opinion that the very mutation is a nullity, question arises as to what course court should adopt, whether to dismiss the writ petition or to remand the case to the Financial Commissioner or to finally decide the issue. Going by technicalities, the order condoning the delay has to be upheld and the petition has to be dismissed leaving the Financial Commissioner free to pass the appropriate orders but being alive to the fact that the dispute dates back to 1992, apparently more than a decade has elapsed and one doesnt know how many more decades it may take in clinching the issue finally, I am, therefore, of the opinion to decide the matter here and now to avoid further delay and multiplicity of proceedings, besides to secure furtherance of justice. Before doing so, it would be appropriate to know the limits of jurisdiction of the court in writ of certiorari and advantageous it is to extract para 7 of Syed Yaqoob v. Radhakrishnan, AIR 1964 SC 477 at 479: "7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued by correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ of certiorari can be issued by correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as far instance, it decides a question without giving and opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that the findings of fact reached by the inferior Court or Tribunal as a result or the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be." 8. Having noticed the limits of writ of certiorari spelt out by the apex court, exercise of jurisdiction under Article 226 becomes imperative in view of manifold reasons like the ones that after allowing the application for condonation of delay, the Financial Commissioner heard the counsel for the petitioner in respect of the objection raised about maintainability of appeal and appeal was declared maintainable thereafter arguments in appeal were also advanced and final verdict was reduced into writing but could not be pronounced because of ad interim direction of this court. Position as on date is that the judgement remains in a sealed cover. These most relevant facts have not been narrated in the writ petition which goes to show that the petitioner has approached the court with unclean hands disentitling him to equities. That apart, the land owner Pandit Prem Nath Jalali, father of respondent No. 1 was dead on 30-05-1991 and was not a living being on 28-06-1992, the date when mutation was recorded by the Naib Tehsildar. That apart, the land owner Pandit Prem Nath Jalali, father of respondent No. 1 was dead on 30-05-1991 and was not a living being on 28-06-1992, the date when mutation was recorded by the Naib Tehsildar. It is also not disputed that Sidiq Bhat in whose favour part of the property belonging to Pandit Prem Nath Jalali was mutated was also dead before the date of mutation. Parties are also not at variance in respect of the factual position that respondent No.1, legal heir of Pandit Prem Nath Jalali was not brought on record at all. So much so he was not even put on notice violating the mandate of sub rule (2) rule 14 of the Jammu and Kashmir Agrarian Reforms Rules 1977 and Standing Order. It also emerges that on the one hand there is total misrepresentation on the part of alleged prospective owners and on the other the Naib Tehsildar has acted arbitrarily observing the mandate of statute and principles of natural justice in breach rendering the mutation a nullity. In the given facts of the case and in particular there being errors of law apparent on the face of the record coupled with the fact that court is seized of the lis in a writ of certiorari, the interests of justice would be met by deciding fate of he mutation here and now instead of referring the matter back to the Financial Commissioner. Situated thus, the mutation dated 28-06-1992 is declared non-est. As a corollary, the appeal pending before the Financial Commissioner shall merge in this judgement. Revenue record shall be set right to indicate the position in respect of subject matter of the mutation as it was prior to the fateful date i.e. 28-06-1992 when disputed mutation was attested by the Naib Tehsildar. 9. In the aforementioned backdrop, the Financial Commissioner is directed to assign the claim of mutation staked by the alleged prospective owners to a Revenue Officer, be it Tehsildar or any other authority having competence under the statue who shall pass orders afresh as indicated above on the touch stone of law relating to mutations and migrants after hearing the parties. 10. 10. Before parting with, I can not resist an observation that the high handedness resorted to by the Naib Tehsildar in attesting the mutation in flagrant violation of statute needs to be dealt with on administrative side by the Financial Commissioner by due adherence to the principles of natural justice. Let action be initiated forthwith against the Naib Tehsildar concerned unless he has ceased to be in the active service. Such course of action is necessary to percolate a message that arbitrary exercise of power can entail disciplinary action even if noticed at a belated stage which may even fall with-in the ambit of abuse of power. 11. Writ petition is disposed of along with CMPs. Interim direction shall stand vacated. However, no order as to costs. Registry to communicate the order to the Financial Commissioner in verbatim.