Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 104 (JK)

Chairman J&K Bose v. John Mohd. Lohar

2018-02-23

SANJEEV KUMAR

body2018
JUDGMENT : Sanjeev Kumar, J. 1. This Civil 2nd Appeal filed by the appellants has been admitted on the following substantial questions of law:- (i) Whether the suit for declaration factually based on the ground of mistake is governed by Article 67 of the Limitation Act and consequently the suit was barred by limitation? (ii) Whether the suit is maintainable and reliefs could be granted against a party, which is not arrayed in the suit? (iii) Whether the appellate Court can allow the appeal without considering evidence? 2. Heard learned counsel for the parties and perused the record. 3. The respondents No. 1 to 3 filed a civil suit for declaration and mandatory injunction seeking a decree against the appellants herein and others for effecting necessary corrections in the matriculation certificates and other higher class certificates so as to indicate the caste of respondents No. 1 to 3 as "Lohar" instead of "Khan" as has been entered in their testimonials. It is pleaded in the plaint that pedigree table of the respondents No. 1 to 3 indicates their caste as "Lohar" however, with their names in the school records and thereafter, in the testimonials issued by the appellants, the same came to be recorded as "Khan." The respondents No. 1 to 3 also relied upon the revenue record as also the voter list of the year 1951 and 1975. It is stated that the aforesaid conflict was noticed by the respondents No. 1 to 3 when they acquired majority and realized that this discrepancy in the record of the appellants as also the University of Kashmir viz-a-viz the revenue record including the Permanent Resident Certificates issued in their favour, would create difficulties in future. The respondents have also claimed in their suit that immediately after noticing the discrepancy, they approached the appellants and the University authorities in person for correction of the records but neither the appellants nor the University authorities paid any heed to their requests. It is, thus, claimed that due to inaction on the part of the appellants, their legal status has come under serious cloud and therefore, the suit. 4. On being put on notice, the appellants caused their appearance through Mr. Kar, Advocate but chose not to file any written statement. The right of the appellants to file written statement was also closed and their defence was accordingly struck off. 4. On being put on notice, the appellants caused their appearance through Mr. Kar, Advocate but chose not to file any written statement. The right of the appellants to file written statement was also closed and their defence was accordingly struck off. The respondents No. 1 to 3 adduced their evidence. Statement of only one witness i.e. Mohmooda Begum, the mother of the respondents No. 1 to 3 was recorded. The respondent No. 1, Mr. John Mohammad also entered the witness box. Learned trial Court, on the basis of evidence adduced came to the conclusion that the claim of the respondents No. 1 to 3 to have a particular caste suffixed to their names was not a civil right and, therefore, the suit was without any cause of action. Accordingly, the trial Court dismissed the suit. 5. The judgment of trial Court was, however, challenged by respondents No. 1 to 3 by way of an appeal before the Court of learned Principal District Judge, Baramulla (hereinafter referred to as "1st Appellate Court"). The 1st Appellate Court, on re-appreciation of the evidence, reversed the decree of dismissal passed by the trial Court and allowed the appeal. The 1st Appellate Court held that a case setup by the respondents No. 1 to 3 was not for change of caste but only for correction of error or mistake. The appellants are aggrieved of the judgment and decree of the 1st Appellate Court and are, therefore, before this Court in this Civil 2nd Appeal. 6. Learned counsel for the appellants submits that the suit of the respondents No. 1 to 3 was barred by limitation and, therefore, the 1st Appellate Court could not have allowed the appeal and granted the decree prayed for in the suit. He invited the attention of this Court to Article 67 of Schedule First of the J&K Limitation Act, Svt. 1995. He, therefore, urged that the suit in terms of Article 67 of the first schedule of the Limitation Act could have been filed by the respondents No. 1 to 3 within three years from the date when the mistake became known to the respondents No. 1 to 3. 1995. He, therefore, urged that the suit in terms of Article 67 of the first schedule of the Limitation Act could have been filed by the respondents No. 1 to 3 within three years from the date when the mistake became known to the respondents No. 1 to 3. It is submitted by the learned counsel for the appellants that admittedly when the respondents No. 1 to 3 passed their 10+2 examination, they were major and, therefore, would have known that the caste indicated in their names was not correct and, therefore, the suit could have been filed within three years next thereafter. In this regard, he relies upon the Division Bench judgment of this Court rendered in case titled Jammu and Kashmir State Board of School Education vs. Sh. Mohd. Sharief, 1995 SLJ 158. 7. On the other hand, learned counsel for the respondents No. 1 to 3 submits that in the given facts and circumstances, Article 67 had no application as the case set up by the respondents in the plaint was not for correction of any mistake but was for correction of the records of the appellants and, therefore, in terms of Article 119, the suit could have been filed within six years. He, therefore, submits that the plea of limitation may not be available to the respondents at the stage of Civil 2nd Appeal for the issue of limitation is a mixed question of fact and law. 8. I have given thoughtful consideration to the rival contentions. From perusal of the plaint filed by the respondents No. 1 to 3, it is abundantly clear that the suit is one for correction of mistake, though, it is not indicated as to who has committed such mistake. It is also a fact that despite having notice of the suit and causing appearance, the appellants chose not to file written statement. Though I hold that the suit was one for relief on the ground of mistake and, therefore, the limitation was governed by Article 67 of the first schedule of the Limitation Act and, therefore, the suit could have been filed within three years from the date, when the mistake on which the relief was founded in the suit became known to the respondents No. 1 to 3. However, in the absence of any pleading of the appellants, this mixed question of law and fact could not have been determined by the trial Court. Even this question was not raised by appellants before the 1st Appellate Court. One of the respondent, at the time of filing of the suit was 19 years old, whereas, two others namely Waseem Raja and John Mohammad were of 21 years 23 years respectively. Even if, we assume that they acquired the knowledge about the discrepancy in their testimonials on attaining the age of majority, still given the nature of pleadings before the trial Court and in the absence of specific objection with regard to limitation taken by the appellants, the suit of the respondents No. 1 to 3 cannot be said to be barred by limitation. The respondents in the plaint have categorically stated that at the time when the caste "Khan" was added to their names in the school records or thereafter, in the records of the appellants, they were minors. Their father passed away when they were minors and it is only after they gained majority and somehow found that there was discrepancy viz-a-viz. their caste in the records of the appellants as also the University of Kashmir, they first approached the appellants for necessary correction and thereafter, filed a suit. There is another version in the plaint in which the respondents have pleaded that after the death of their father, respondent No. 1 applied for employment under SRO 43 of 1994 and while processing his case for compassionate appointment, the police authorities detected the contradictions in the academic records of the respondent No. 1 which necessitated seeking correction from the appellants. In that view of the matter, the question No. 1, though answered in affirmative, only to the extent that the suit was primarily based on the ground of mistake and, therefore, the same was governed by Article 67 of Schedule 1 of the Limitation Act, but it is held that the suit was not barred by limitation. This is so, because the plea of limitation had not been taken by the appellants who had chosen not to file any written statement. Even before the 1st Appellate Court, the said plea was not taken by the appellants. This is so, because the plea of limitation had not been taken by the appellants who had chosen not to file any written statement. Even before the 1st Appellate Court, the said plea was not taken by the appellants. The plea of limitation if it involves a mixed question of law and fact cannot be permitted to be raised in the appellate stage. 9. Similar view was taken by the Supreme Court in Name Rama Murthy vs. Ravula Somasundaram and Others, (2005) 6 SCC 614 . What was stated by the Hon'ble Supreme Court in para No. 5 reads thus:- "We also see no substance in the contention that the suit was barred by limitation and that the courts below and have decided the question of limitation. When limitation is the pure question of law and from the pleadings itself it becomes apparent that a suit is barred by limitation, then, of course, it is the duty of the Court to decide limitation at the outset even in the absence of a plea. However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved.............." 10. This view was reiterated by the Supreme Court in the case of Balasaria Construction (P) Ltd. vs. Hanuman Seva Trust and Others, (2006) 5 SCC 658 , wherein it was held that the suit could not be dismissed under Order 7 Rule 11(d) of the Code of Civil Procedure in the absence of proper pleadings relating to limitations, particularly when the question of limitation is a mixed question of law and fact and of a mere reading of the plaint, the suit could not be held to be barred by limitation. 11. In the facts and circumstances of the case as narrated above, the plea of limitation which has been projected by the appellants for the first time in this appeal is a mixed question of fact and law and, therefore, same cannot be permitted to be raised at this stage. 12. 11. In the facts and circumstances of the case as narrated above, the plea of limitation which has been projected by the appellants for the first time in this appeal is a mixed question of fact and law and, therefore, same cannot be permitted to be raised at this stage. 12. With regard to question No. 2, learned counsel for the appellants has relied upon the judgment of Division Bench of this Court in the case of University of Jammu and Others vs. Brinder Nath and Others, 1999 SLJ 421 and submitted that since J & K BOSE was not a party and, therefore, no relief could have been granted. The arguments raised, on the face of it is misconceived. Needless to say that a decree passed in a case would bind only the parties to the lis. In any case, the decree passed by the 1st Appellate Court in favour of respondents No. 1 to 3 is a decree in personam and not a decree in rem. That being the position, the plea that no decree could have been passed against the J & K BOSE is not sustainable. The decree passed by the Appellate Court would only bind the appellants and it is, because of this reason, the appellants are in appeal before this Court and not the J&K Bose. This answers the second question formulated in this appeal. 13. Third question framed by this Court primarily points to perversity in the judgment and decree impugned. Admittedly, the suit filed by the appellants was not contested. No written statement was filed, obviously, the defence of the appellants was struck off. The only material available before the trial Court and the 1st Appellate Court was the statement of respondent No. 1 and one other witness and the documentary evidence in the shape of revenue record, etc. In such situation, the Appellate Court came to the conclusion that the Caste of the respondents No. 1 to 3 was in fact "Lohar" and not "Khan." It is equally demonstrated in the record that due to this discrepancy, the right of one of the respondents to seek employment on compassionate grounds had come under cloud. 14. In such situation, the Appellate Court came to the conclusion that the Caste of the respondents No. 1 to 3 was in fact "Lohar" and not "Khan." It is equally demonstrated in the record that due to this discrepancy, the right of one of the respondents to seek employment on compassionate grounds had come under cloud. 14. That being so, it is not possible for this Court to agree with the learned counsel for the appellants that the 1st Appellate Court allowed the appeal of the respondents and passed a decree without considering the evidence and, therefore, the judgment and decree impugned suffers from perversity. 15. In view of the aforesaid, I do not find any merit in this appeal and is accordingly dismissed.