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2010 DIGILAW 612 (JK)

Ab. Rashid Rather v. Gh. Ahmad Ganai

2010-12-11

Hasnain Massodi

body2010
1. The petitioner, through medium of instant revision petition calls in question order of Learned Sub-Judge Bijbehara, whereby Learned Trial Judge under Order 7 Rule 11 (d) CPC rejected the petitioner’s plaint. The revision petition has been filed against the following back drop. 2. The petitioner on 22nd November 2005 laid a suit for grant of declaratory decree declaring the petitioner owner in possession of a plot of land measuring 2 Kanal 10 Marlas comprising Survey 607/B situated at Frisal Tehsil Kulgam, (herein referred to as suit land). The petitioner also prayed for a permanent injunction decree perpetually restraining the respondents 1 to 4 from interfering with the possession of the suit land and a mandatory injunction decree commanding defendants 5 and 6 i.e. Tehsildar (Territorial) Kulgam and Additional Deputy Commissioner Anantnag to restore the entries in the revenue record in respect of the suit land in accordance with levy under No. 18135 and mutation orders 845 and 848 under Section’s 4 and 8 Jammu and Kashmir Agrarian Reforms Act, 1976 to the position as existed prior to alleged interpolations/insertions in the revenue record. The petitioner’s case was that the suit land having been in cultivating possession of the petitioner, mutation under Section 4 of Jammu and Kashmir Agrarian Reforms Act, 1976 was attested under mutation order No.849 in favour of the State and thereafter when the petitioner deposited levy under No. TR 18135 in Treasury, Kulgam the mutation under Section 8 of the Act vide mutation order No. 848 was attested in favour of the petitioner, clothing the petitioner with ownership rights over the suit land. It was pleaded that petitioner after the mutations were attested planted fruit bearing trees, converted it into an orchard and has been ever-since in the possession of suit land. It was pleaded that petitioner after the mutations were attested planted fruit bearing trees, converted it into an orchard and has been ever-since in the possession of suit land. The petitioner complained that the defendant No. 1 working as Girdawar in Revenue Department, made an attempt to persuade the petitioner to exchange the suit land with proprietary land of the respondent No. 1 and when the petitioner spurned the offer, the respondent No. 1, in connivance with local Patwari made interpolations /insertions in the revenue record and got his named recorded as owner of the suit property; and that the respondent No. 1 encouraged by his manipulations was with the assistance of respondents 2 to 4, keen to interfere with petitioner’s possession over the suit land and that the official respondents despite request ignored to restore the entries in the revenue record pertaining to suit land to the position as existed before the alleged interpolations /insertions. 3. That respondent No. 1 to 4 without filing written statement in the suit made an application under Order 7 Rule 11 CPC pleading therein that as Trial Court lacked jurisdiction to deal with the controversy raised by the petitioner and try the suit, the plaint was liable to be rejected under Order 7 Rule 11 (d) CPC. The respondent’s, case was that the dispute raised in the suit fell within the ambit of Jammu and Kashmir Agrarian Reforms Act, 1976 and jurisdiction of Civil Court was expressly barred in terms of Section 25 of the Act. The respondent 1 to 4 further pleaded that the petitioner had no cause of action in as much as the petitioner had ignored to issue notice to respondents 5 and 6 prior to institution of suit and thus failed to comply with requirements of Section 80 CPC. The application was resisted on the grounds that as the petitioner’s suit was for declaration of his title over the suit land and for permanent jurisdiction decree, Civil Court had jurisdiction to try the suit. 4. The application was resisted on the grounds that as the petitioner’s suit was for declaration of his title over the suit land and for permanent jurisdiction decree, Civil Court had jurisdiction to try the suit. 4. Learned Trial Judge on going through the pleadings and after hearing Learned Counsel for parties recorded agreement with the case set up by the respondents 1 to 4, held the matter to fall within purview of Jammu and Kashmir Agrarian Reforms Act, 1976; jurisdiction of Civil Court barred under Section 25 Clause (a) and proceeded to reject the plaint under Order 7 Rule 11 (d) CPC. 5. The Trial Court order dated 31.03.2006 is questioned on the grounds that the order impugned is bad in law and liable to be set side. It is averred that mutation under Section’s 4 and 8 Jammu and Kashmir Agrarian Reforms Act, 1976 having been attested in the name of petitioner, the authorities under the Act have become functus officio and no more retain jurisdiction over the matter. It is pleaded that as the petitioner in the suit sought declaration of his title and protection of his possession, the matter in terms of Section 9 CPC, fell exclusively within the jurisdiction of Civil Court and Learned Trial Court failed to exercise jurisdiction vested in it under law by rejecting the plaint and not entertaining and proceeding with the suit. It is insisted that the impugned order can be called in question through medium of a revision petition in view of law laid down in 1998 SLJ 22 and followed in 2004 (2) SLJ 355. 6. I have gone through revision petition as also Trial Court record. I have heard Learned Counsel for the parties. Section 2 (2) defines decree as under:- (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 1 {***} section 144, but shall not include- (a) Any adjudication from which an appeal lies as an appeal from an order, or (b) Any order of dismissal for default. 7. It shall be deemed to include the rejection of a plaint and the determination of any question within 1 {***} section 144, but shall not include- (a) Any adjudication from which an appeal lies as an appeal from an order, or (b) Any order of dismissal for default. 7. It is clear from a plain reading of the above provision that an order rejecting a plaint under Order 7 Rule 11 CPC is a decree. Order 41 CPC provides for appeals from original decrees. In terms of Section 34 Civil Courts Act, 1920-AD, an appeal from a decree of a Sub-Ordinate Judge is to lie to the District Judge. 8. From a conjoint reading of aforesaid provisions it follows that an appeal from original decree passed by a Sub-Judge or a Munsiff is to be preferred in the form of a memorandum signed by the appellant or his pleader to the District Judge of the Judicial district. Order 43 CPC provides for appeals from orders. Though the Order 43 CPC while enumerating the orders passed under various Provisions of the Code makes mention of an order under Order 7 Rule 10 CPC returning a plaint to be presented to the proper court, it does not make mention of an Order under Order 7 Rule 11 CPC rejecting the plaint. The reason is obvious and not difficult to figure out. The order rejecting the plaint under Order 7 Rule 11 CPC in terms of Section 2 (2) CPC amounts to a decree and in terms of Order 43 CPC can be questioned through the medium of appeal before the Appellate Court in accordance with Section 34 of the Civil Courts Act 1920. In the present case the petitioner instead of questioning legality of the order impugned in revision petition through the medium of an appeal in terms of Order 41 CPC, has come up in revision before this Court. The petitioner obviously has chosen a wrong remedy and a wrong forum to question order of the Trial Court dated 22.11.2005, whereby his plaint has been rejected. The petitioner can not press into service the law laid down in 1998 SLJ 22 and 2004 (ii) SLJ 553, for the reason that the controversy raised in the reported cases related to revision from an order appealable under Order 43 CPC. The petitioner can not press into service the law laid down in 1998 SLJ 22 and 2004 (ii) SLJ 553, for the reason that the controversy raised in the reported cases related to revision from an order appealable under Order 43 CPC. It was held that an order otherwise appealable in terms of Order 43 CPC may well be assailed through medium of a revision petition before the High Court and any curtailment on the power of the High Court being in-conflict with Constitutional power vested in the High Court of supervising the Court hierarchy to be invoked in appropriate cases of non exercise or illegal exercise of the jurisdiction vested by law in any Court, can not be taken away by the Code of Civil Procedure. The present case is not one of a revision petition having been filed against an order otherwise appealable under Order 43 CPC but a revision petition having been filed against an order amounting to decree within the meaning of Section 2 (2) CPC to be questioned only through medium of an appeal before Appellate Court; In order to not to prejudice the rights of the petitioner it would not be proper to comment on the merits of the case as such comments may influence Appellate Court, in the event an appeal is preferred by the petitioner against the order impugned in the present revision petition. 9. For the reasons discussed, the revision petition is held incompetent and not maintainable and is accordingly dismissed. The Trial Court record be send down.