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2008 DIGILAW 429 (JK)

Hotel Ellora v. Shamboo Nath Sopori

2008-11-12

MUZAFFAR HUSSAIN ATTAR

body2008
1. Heard learned Counsel for the parties. This Civil Misc. Appeal is directed against the order dated 29th Nov. 2006 (passed by 3rd Additional District Judge, Srinagar. The petitioner claims to be tenant of the suit property. The present appellant filed a suit for perpetual injunction against the respondents which is pending before ld. Sub Judge (Passenger Tax) Srinagar. The interim application was moved before that court seeking restraint on the respondents from interfering into the possession of the appellant which was dismissed by the trial court vide its order dated 29th Nov. 2006. 2. Civil Misc. appeal was decided against the said order by the court of 3rd Additional District Judge on 23rd Dec. 2006. While setting aside the order of the trial court the first Appellate Court has recorded findings about the status of the defendants and has held them to be "migrants". On this finding the ld. first Appellate court has observed that trial court ought to have stayed the proceedings in the suit in terms of Section 3 of Jammu and Kashmir Migrants (Stay of proceedings) Act 1997. The appellant is aggrieved of this part of the impugned judgment. 3. The J&K Immovable Property (Preservation, Protection and Restraint on Distress) Sales Act 1997 (for short Act of 1997) is a temporary legislation to secure the interests of migrants who had to leave home due to unprecedented circumstances in which the State of J&K was ushered into in the year 1989/1990. The section of population which was forced to leave their homes because of the circumstances beyond their control, cannot be declared to be migrant for all times to come. They are children of Soil and History of State/Valley in all respects will be incomplete without them. The Act of 1997 cannot be interpreted in a manner which may seal the entry of Son of Soil to his home land. The Act of 1997 is to be read and interpreted in a manner which would protect the lawful and legal rights of the migrants qua their properties etc in their absence. 4. A person may be migrant at one point of time, may choose to return to his native place, in such eventuality will cease to be a migrant. The Act of 1997 is to be read and interpreted in a manner which would protect the lawful and legal rights of the migrants qua their properties etc in their absence. 4. A person may be migrant at one point of time, may choose to return to his native place, in such eventuality will cease to be a migrant. A person might have left the State before 1989 in pursuit of his avocation, he may & may not come under the definition of Act of 1997, depending on the facts and circumstances of each case. The person who has left the State of J&K can not be said to be a migrant for all times to come. The status of being a migrant once claimed and when denied by otherside, is to be proved before the competent Forum/court of competent jurisdiction. 5. Right to institute a suit is a right recognized at common law and this right inheres in everybody. This right is however subject to the limitations as contained in Sec (9) of the CPC which is reproduced as under: - "9. Courts to try all civil suits unless barred Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred." 6. The suit once instituted can be declared to be barred if it is shown to be so, by any statute and can be either dismissed or rejected and can be stayed as the case may be. But it cannot be said that a suit in all circumstances cannot be instituted in the court of law. The suit can be dismissed or rejected & proceedings stayed as a case may be, if it is hit by such statutory bar. 7. In the present case, the defendant No.1 against whom the suit for perpetual injunction has been filed before the trial court, claimed to be migrant which claim is denied by plaintiff-appellant. His status may have to be proved before the trial court in the facts and circumstances of this case, and the court may be required to hold an enquiry for ascertaining the status claimed by the defendant in the suit. 8. His status may have to be proved before the trial court in the facts and circumstances of this case, and the court may be required to hold an enquiry for ascertaining the status claimed by the defendant in the suit. 8. The learned counsel for the respondents has fairly conceded that the finding of the First Appellate court that there is material on the file that the defendant No.1 is migrant and proceedings were to be stayed is unwarranted as same was not enquired either by trial court or Appellate court. 9. The revision is allowed to this extent and the finding recorded by Appellate Court about the status of the respondent to be migrant is expunged/deleted from the judgment. The respondent(s)-defendant(s) are at liberty to raise all the grounds available to them under law before the trial court which would include claim of being migrant as well and the trial court will decide the controversy after conducting enquiry. To this extent the order of the First Appellate court is modified. The trial court will proceed in the matter in accordance with law and will expeditiously decide the pleas/objections raised by the learned counsel for parties before him. 10. The counsel for respondents submits at bar that he will be filing written statement within seven working days from today. If the respondents claim status of being migrant under (Stay of proceedings) Act,. 1997, the trial court may frame preliminary issue about the same and decide the said issue in accordance with law. 11. Revision petition is accordingly disposed of. Parities to appear before the trial court on 20th Nov. 2008.