Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 215 (JK)

Om Parkash Gupta v. Muleshwar Anjun

2009-05-07

A.K.Shan

body2009
1. In this revision petition 6 appeals decided by Joint Agrarian Reforms Commissioner Jammu decided by a composite order dated 25.3.2006 have been assailed and sought to be set aside on the ground mentioned in the revision petition. 2. Mutation No:227,231,243,246,181 and 238 under Sections 4 and 8 were attested by the Tehsildar Jammu in favour of the petitioner and proforma respondents which were challenged before Financial Commissioner/Commissioner Agrarian Reforms Jammu on 7.5.1991 by the father of the petitioner Suraj Nath. The appeals came to be dismissed for default of appearance of the parties on 22.11.1994. 3. After gap of 11 years when Suraj Nath had already died, his 4 sons preferred 6 appeals on 26.8.2007 before Joint Agrarian Reforms Commissioner (with powers of Commissioner Agrarian Reforms), Jammu, who decided the same by a composite order dated 25.3.2006 and after setting aside the mutation in question remanded the matter to Assistant Settlement Officer Jammu for inquiry and appropriate action under Section 13 and other provision of Agrarian Reforms Act. It is this order which has been assailed before this Tribunal. 4. After giving the detail about the attestation of mutations and thereafter raising of construction in the land in question, the petitioner has challenged the judgment of the court below on the ground that after the dismissal of earlier appeals for default of appearance, filing of fresh appeal was not permissible and as per Order 41 Rule 19 of CPC the dismissed appeals could have been sought to be re-admitted and as such the appellate court had no jurisdiction to entertain the fresh appeal. It is further pleaded that the fresh appeals were otherwise hopelessly time barred and the appellate court failed to decide the application for condonation of delay and directly touched the merits of the case which is in contravention of Order 41 Rule 3 of the CPC. 5. I have heard the Learned counsel for parties and examined the record minutely. 6. During the course of argument Mr. Razdan appearing for the petitioner re-iterated the legal ground taken in the revision petition and vehemently contended that impugned order is without jurisdiction and is required to be set aside. 7. According to him in terms of Rule 48 of the Agrarian Reforms Rules the provision of CPC relating to appeals from original decree apply mutatis mutandis to all the appeals filed under the Agrarian Reforms Act. 8. 7. According to him in terms of Rule 48 of the Agrarian Reforms Rules the provision of CPC relating to appeals from original decree apply mutatis mutandis to all the appeals filed under the Agrarian Reforms Act. 8. On the other hand Mr. Gupta appearing for the contesting respondent admitted that fresh appeal were not maintainable but submitted that the earlier appeals were dismissed for default of appearance of the parties and as such Order 9 Rule 3 CPC can be made applicable according to which after dismissal of a cas for default of parties a fresh suit can be filed. 9. Although both the Ld. Counsel for the parties had argued on merits but I am not considering such argument because the maintainability of the fresh appeal has been put to stake by the Ld. Counsel for the petitioner which I am going to decide. If petitioner fails on this ground, then of course, merits of the case can be looked into, to find out as to whether the impugned order suffers from any perversity or not. 10. The Ld. Counsel for the contesting respondents has rightly admitted that fresh appeals were barred. In fact he appears to be well aware about the provision of law in this regard but his contention that order 9 Rule 3 CPC is applicable to the present case, is far fetched and devoid of any legal force. By no stretch of imagination provision of Order 9 Rule 3 CPC can be extended to the present case. Order 9 governs the suit filed in the original court whereas Order 41 takes within its ambit., the appeal filed against the original decree passed by the original courts. There is a complete procedure provided in Order 41 CPC which governs the filing of the appeal against the original decree. 11. Once there is a special procedure provide under Order 41 of CPC, Order 9 CPC cannot be made applicable to appeals. Had there been the intention of the legislature to apply Order 9 to the appeals then it would have been provided in Order 4 CPC then that Order 9 CPC was to apply mutates mutandis to the appeal filed under Order 41 CPC. 12. Had there been the intention of the legislature to apply Order 9 to the appeals then it would have been provided in Order 4 CPC then that Order 9 CPC was to apply mutates mutandis to the appeal filed under Order 41 CPC. 12. In view of the legal position, unfolded here-in-above, the appellate court had no jurisdiction to entertain fresh appeals, when earlier, the court had dismissed the appeals for default of appearance of parties. Although the maintainability of the fresh appeal before the appellate court was assailed but no findings on the maintainablity of the appeals has been returned. The appellate court was under obligation first to decide maintainability of the appeals in which it has failed resulting in the miscarries of justice. The appellate court had no jurisdiction to entertain fresh appeal and as such the judgment passed by the appellate court is illegal and without jurisdiction. 13. Here it is pertinent to mention that normally revision is not permissible against the order of remand but when the remand court lacks inherit jurisdiction to entertain the appeal, then revision can be entertained notwithstanding the direction of the appellate court for fresh inquiry. 14. Accordingly this revision petition is allowed, and composite judgment impugned in revision petition, is set aside with costs. 15. The record of the court below be sent back and file be consigned to record after due compilation.