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2012 DIGILAW 280 (JK)

Abdul Samad Mir & Ors. v. Abdullah Mir & Ors.

2012-05-25

MOHAMMAD YAQOOB MIR

body2012
1. Application for bringing on record legal representatives of deceased plaintiff (Sidda Mir) admittedly has been filed after the prescribed period of limitation, therefore, application for condonation of delay alongside has been filed. Court of Sub Judge, Kupwara has dismissed the application for condonation of delay, resultantly application for brining on record legal representatives has been held to be time barred and suit to the extent of deceased plaintiff Sidda Mir has been opined to be deemed abated. Dissatisfied with the said order dated 29.7.2009, instant revision petition has been filed. 2. The litigation in between the parties has commenced with the presentation of the plaint on 01.04.1976 before the Court of Sub Judge, Handwara i.e. suit for declaration and joint possession titled Sidda Mir and ors v. Mohammad Mir & ors. was regarding the landed property measuring 89 kanals and 2 marlas covered by Khewat No.7 left behind by the predecessor-in-interest of the parties. The said landed property was alleged to be un-partitioned so in joint possession of the parties. Plaintiffs therein claim to be in possession of the land measuring 18 kanals and 18 marlas when allegedly they were entitled to get 44 kanals and 15 marlas, therefore, claimed to be entitled to possession of further 25 kanals. 3. In the year 1978, Agrarian Reforms Act, 1976 came into force. Since dispute pertains to the agricultural land, therefore, suit was transferred to be dealt with by the authorities under Agrarian Reforms Act. Then the case remained pending with the authorities concerned for quite long time. The Collector decided the matter on 31.12.1981. Same order was challenged in appeal before Joint Agrarian Reforms Commissioner who remanded the case back to the Collector with the direction to dispose of the case afresh in the light of observations made therein. The said order was again challenged by medium of revision before J&K Special Tribunal which was dismissed on 24.2.1993. Then again vide order dated 08.07.2006 Collector concluded that the issue of declaration is beyond the competence/jurisdiction of the Collector, therefore, forwarded the case to the Court of Sub Judge, Handwara on 14.7.2006. 4. Sub Judge in his order dated03.08.2008 has recorded that the suit has been instituted in the year 1976 but remained pending in revenue courts for about 30 years, therefore, posted the case for recording statements of witnesses and for framing of issues. 5. 4. Sub Judge in his order dated03.08.2008 has recorded that the suit has been instituted in the year 1976 but remained pending in revenue courts for about 30 years, therefore, posted the case for recording statements of witnesses and for framing of issues. 5. Thereafter an application for transfer was filed before the Court of District Judge, Kupwara. With the consensus of parties, two cases, one pending before the Court of Sub Judge, Handwara and another before the Court of Munsiff, Sogam which was subsequently filed, were transferred to the Court of Sub Judge, Kupwara. During pendency of the case before the Court of Sub Judge, Kupwara the matter was referred to Lok Adalat but could not be settled. 6. An application for bringing on record the legal representatives of the deceased plaintiff Sidda Mir was filed along with an application for condonation of delay which has been dismissed by virtue of order impugned by the Court of Sub Judge, Kupwara. 7. Learned counsel for the respondents at the very outset submitted that the revision petition is not maintainable on two counts, first that the order impugned is appealable and second that in view of recent amendment in Section 115 of CPC, such orders are not amenable to the revisional jurisdiction. 8. Now question is whether order impugned is appealable. Answer has to be "no". Reliance placed by the learned counsel for the respondents on the judgment of this Court titled Maya Ram v. Nanak Chand & ors, reported in 1993(1) Current Civil Cases (III) 490, is of no help to him because in the reported judgment suit was ordered to abate as a whole against both deceased as well as surviving defendants it is in that context it was held that the order refusing to set aside abatement is appealable because it was decided that the right to sue did not survive and the order would amount to a decree within the meaning of Section 2(2) CPC. In the instant case by virtue of order impugned suit has been ordered to abate only vis-'-vis deceased plaintiff, so it cannot be said to be an appealable order. 9. The question whether, in view of amended proviso to Section 115 CPC, order is amenable to revisional jurisdiction. In the instant case by virtue of order impugned suit has been ordered to abate only vis-'-vis deceased plaintiff, so it cannot be said to be an appealable order. 9. The question whether, in view of amended proviso to Section 115 CPC, order is amenable to revisional jurisdiction. The said proviso provides that revision can be entertained only against final orders or an order which, if would have been passed in favour of the revisionist, would result in termination of the suit proceedings. Admittedly suit proceedings have not been terminated and in case order impugned would have been in favour of the revisionist, proceedings of the suit would not be terminated, so revision cannot be maintained. 10. Even though revision petition, for the afore-stated reasons, is not maintainable but while going through entire proceedings and keeping in view pendency of the case from the year 1976, more particularly its pendency for a period of 30 years in the revenue courts coupled with the fact of transfer and re-transfer of the case at different levels by the revenue authorities as well as by the civil courts, then the impact of orders passed from time to time, in my opinion an exceptional case is carved out for invoking supervisory powers available under Section 104 of the State Constitution. 11. The injustice, as may be the resultant effect of the order impugned, that too in view of long drawn litigation, cannot be permitted to happen. Therefore, this petition is treated as petition under Section 104 of the State Constitution. In taking such view, I am fortified by the judgment rendered by the Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai & others reported in (2003) 6 SCC 675 , wherein it has been held that revisional power is barred but power of superintendence under Article 227 of the Constitution of India, in appropriate cases, has to be exercised so as to undo the injustice, however, with word of caution i.e. the power has to be exercised only in exceptional cases so as to avoid travesty of justice. Section 104 of the State Constitution empowers the Court to exercise powers identical to one exercisable under Section 227 of the Constitution of India. 12. Section 104 of the State Constitution empowers the Court to exercise powers identical to one exercisable under Section 227 of the Constitution of India. 12. In terms of Rule 3 of Order XXII of the Code of Civil Procedure, when within the time limited by law no application is made for brining on record legal representatives, the suit has to abate as far as plaintiff is concerned. In the instant case admittedly application for bringing on record legal representatives of plaintiff Sidda Mir has not been filed within time, therefore, abatement of the suit qua deceased Sidda Mir is automatic. The application as filed for bringing on record legal representatives along with application for condonation of delay has to be treated as application under Rule 9 of Order XXII of CPC for setting aside the abatement. While seeking such abatement, sufficient cause, which had prevented the party, can be projected as the provision of Section 5 of the Limitation Act has its application in view of sub-rule (3) of said Rule 9. 13. The petitioners have not been given chance to lead evidence in support of the application so as to prove sufficient cause in not applying in time. The trial court has simply referred to the contents of the application and the reply, so has rejected the application which, in effect, would amount to condemning the petitioners unheard. 14. Trial court has also not considered a very important aspect of the case i.e. suit was for declaration and joint possession, so he had to ascertain as to whether by ordering abatement qua one of the plaintiff, what could be the effect on the suit as a whole. 15. Viewed thus, petition is allowed, order impugned set aside. Case remitted back to the Court of Sub Judge, Kupwara with the direction to provide opportunity to both the parties to lead evidence in support of the application and thereafter to pass appropriate orders as shall be warranted. 16. The parties being co-owners and co-sharers, earlier had tried to settle the matter in Lok Adalat which has failed but there is always chance of settlement. Learned Sub Judge, Kupwara shall make an endeavour to see if the matter can be settled amicably, in the process after having consent of the parties, may take steps for referring the matter to the mediation. Learned Sub Judge, Kupwara shall make an endeavour to see if the matter can be settled amicably, in the process after having consent of the parties, may take steps for referring the matter to the mediation. If that does not fructify, then shall proceed in the matter in the manner indicated above and thereafter shall ensure that the suit, which is pending from year 1976, is scheduled for hearing in a manner which will help disposal of the suit finally with reasonable dispatch. 17. Trial court record along with copy of the judgment be send back to the trial Court (Sub Judge, Kupwara) where parties shall appear on 11.6.2012.