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2009 DIGILAW 212 (JK)

Prithvi Raj v. Ram Ditta

2009-05-07

MUZAFFAR HUSSAIN ATTAR

body2009
1. This petition was filed calling in 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: 2. The petitioner instituted Civil Original Suit against the respondents praying therein that a decree for permanent injunction be passed in favour of the petitioner 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 situated at Village Paloura Tehsil Jammu. The suit after presentation in the court of District Judge Jammu, was transferred to the court of First Appellate Addl. District Judge 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 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 nowhere raised objection thereby questioning the jurisdiction of the court to try and hear the suit because it is the authorities under the Agrarian Reforms Act to 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. 3. 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 involved in the case 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 learned trial judge has considered the prima-facie case, balance of convenience and irreparable injury involved in the case 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 District Judge 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. 4. Heard learned counsel for parties. Considered the matter. 5. 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. The court 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. 6. 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 the legality of the case. The ld counsel for appellant submitted that the suit before the court is not maintainable being barred by Agrarian Reforms Act of 1976. The ld. First appellate court has set aside the order of the trial court only by returning a prima-facie finding that the subject matter of the suit being covered by provisions of Agrarian Reforms Act. The suit may not be competent. 7. 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 had not been raised before the trial court in written statement. The said objection could have been raised for the first time before the first appellate court that too in civil misc. appeal. 8. 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 had not been raised before the trial court in written statement. The said objection could have been raised for the first time before the first appellate court that too in civil misc. appeal. 8. Right to institute the suit inheres in every person because this right is recognized in 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 make a rule as to whether it has jurisdiction or not to try or hear the suit. 9. In this case the objection had been raised in the written statement, about the jurisdiction of the court, the issue could not had been raised in the civil misc. appeal. The order passed by first appellate court is rendered illegal and has 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 balance of convenience, 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 as well. The order of the first appellate court in these circumstances is set aside. 10. Ld counsel for respondents submitted 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 within the merits of the case. 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. 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 found that because of some legal defect the suit is not competent then the court is under statutory obligation to reject the suit in-terms of Order 7 rule 11 CPC. The principal underlines Order 7 rule 11 CPC is to stop the litigation at initial stage which litigation on same grounds would be dismissed even after ten year, thus occupied the precious time of the court. The trial court will also take note of observation of the court to find out as to whether the suit is maintainable in the present form. 11. The petition is accordingly allowed. Parties are directed to appear before the trial court on 18th April 2009. Record be send back.