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2018 DIGILAW 466 (JK)

Ab. Aziz Mir v. Mushtaq Ahmad Khan

2018-07-03

JANAK RAJ KOTWAL

body2018
JUDGMENT : Janak Raj Kotwal, J. 1. In this revision petition petitioner assails order dated 22.07.2013 passed by the learned 1st Additional District Judge, Srinagar (hereinafter to be referred as the trial/executing court), whereby, in the proceedings for execution of a decree dated 24.04.1997 commenced by the decree holder, Zenab Begum, herein respondent No. 6 (now dead), petitioner's application under section 47 of the Code of Civil Procedure (for short the Code) has been dismissed. 2. A few background facts relevant for and leading to filing of this petition are these. Far back in the year, 1997, the decree holder filed a suit for pre-emption in the trial/executing court against her son, Mushtaq Ahmad Khan (vendor), as defendant No. 1, herein respondent No. 1 and Ghulam Nabi Shah (vendee), as defendant No. 2, herein respondent No. 2 (now dead), for enforcing her right of prior purchase in respect of a piece of land including a shed thereon, which the respondent No. 1 had sold to respondent No. 2 by virtue of a sale deed registered on 30.01.1991. During pendency of that suit, respondent No. 2 further sold the suit property to respondents 3, 4 and 5 and the decree holder (plaintiff) therefore, amended the plaint by impleading respondents 3, 4 and 5 as additional defendants therein. Respondents (defendants) 1 and 2 did not contest the suit at all and were set ex-parte. Respondents (defendants) 3 to 5 were also set ex-parte, however, after they had filed their written statement. The suit was allowed and decreed by the trial court in favour of the decree holder (plaintiff) vide ex-parte judgment and decree dated 24.06.1997. The decree holder filed execution proceeding on 04.12.1997 against respondents 1 to 5. The petitioner challenged the ex-parte judgment and decree in OWP No. 45/1998 before this Court with the prayer for quashing the same, claiming that he has acquired right in the suit property on the basis of an oral gift made in his favour by respondents (defendants) 3 to 5. A learned Single Bench of this Court vide judgment dated 12.04.2007 allowed the writ petition and set aside the judgment and decree dated 24.06.1997. The judgment of the learned Single Bench, however, was set aside by a learned Division Bench in LPA No. 73/2007 filed by the decree holder (plaintiff). A learned Single Bench of this Court vide judgment dated 12.04.2007 allowed the writ petition and set aside the judgment and decree dated 24.06.1997. The judgment of the learned Single Bench, however, was set aside by a learned Division Bench in LPA No. 73/2007 filed by the decree holder (plaintiff). The petitioner preferred SLP against the judgment of the learned Division Bench in the Supreme Court, which he, however, withdrew, reserving liberty to seek such other redress as may be permissible under law. The SLP, thus, was dismissed accordingly on 26.11.2012. The petitioner thereafter filed application under section 47 of the Code before the trial/executing court. Not only that, the petitioner also filed appeal against the ex-parte judgment and decree before this Court along with application for leave to appeal for not being party to the said judgment and decree as also an application for condonation of delay. Whereas leave to appeal was granted by a learned Single Bench of this Court by the order dated 24.03.2015, LPA against which was dismissed on 20.05.2015, another Bench of this Court, however, dismissed the application for condonation of delay vide order dated 12.10.2017 in COD No. 105/2015 taking the view that, the petitioner having filed objections in terms of section 47 of the Code, he cannot be permitted to prosecute the appeal. The application under section 47 came to be dismissed by the trial/executing court vide order dated 22.07.2013, which is impugned in this revision petition. 3. Heard learned counsel for the parties and perused the record. 4. In the application under section 47 of the Code, the petitioner sought dismissal of the execution proceeding. He, firstly claimed that he has acquired the suit property on the basis of oral gift made in his favour by respondents (defendants/judgment debtors) 3 to 5 and the same has been duly mutated in his favour in the revenue records and that he has acquired the status of a legal representative of the said respondents/judgment debtors, competent to maintain his claim under section 47. Further he contended that the suit property, besides the land measuring 5440 s.ft., comprises also of a single storey) structure with a bandsaw run therein for conducting business in manufacture and sale of fruit boxes. Further he contended that the suit property, besides the land measuring 5440 s.ft., comprises also of a single storey) structure with a bandsaw run therein for conducting business in manufacture and sale of fruit boxes. He assailed the judgment and decree primarily on the ground that the decree is nullity as 'no right of prior purchase is available about the place of business as prescribed by section 5 of the Jammu and Kashmir Right of Prior Purchase Act, Svt. 1993' (for short 'the Act') and that the trial court did not have inherent jurisdiction to pass the decree about the land on the basis of alleged right of prior purchase, which is not available under the statute. In addition, the petitioner contended that the decree is not executable as the land under the judgment and decree has not been identified inasmuch as the decree relates to land only, whereas the suit property comprises of a structure also and that the execution petition is time barred. 5. Learned trial/executing court upheld the petitioner's right to maintain application under section 47 of the Code taking the view that, he having acquired title in the property covered under the decree during pendency of the suit, the doctrine of lis pendens applied and decree was binding on him. Learned court, however, rejected the petitioners plea that the decree was nullity taking the view inter alia that the trial court after appreciating the evidence has found the right of prior purchase of the suit property in favour of the decree holder and the executing court cannot go behind the decree. Learned trial/executing court rejected the other pleas too. 6. The core question raised for determination of this Court in this revision petition, as demonstrated by the learned counsel on each side, is; whether the trial court lacked inherent jurisdiction to entertain and try the suit, having regard to the subject matter thereof and therefore, the judgment and decree dated 24.06.1997 are nullity for having been passed without jurisdiction? 7. The bottom line of the submissions made by the learned counsel, Mr. 7. The bottom line of the submissions made by the learned counsel, Mr. J.H. Reshi, appearing on behalf of the petitioner, was that the suit property is exempted from the right of prior purchase under section 5 of the Act, which provides that provisions of the Act cannot be invoked in respect of a property, which is being used as a place for transaction of public business and therefore, the decree passed by the trial court is nullity and cannot be executed. Contextually, it is contended in paragraph 7(b) of the revision petition that 'it was a clear case where lack of jurisdiction in passing the decree was apparent on the face of the record in view of the section 5 of the Right of Prior Purchase Act'. In support of this plea, learned counsel, Mr. Reshi referred to the judgment dated 24.06.1997 wherein at the outset the suit property has been referred to as 'land including a shed in which a bandsaw is run under the name and style M/s. Kohinoor Shooks situated at Zainakote.' Likewise, learned counsel also referred to the description of the suit property given in the amended plaint on the main suit file. Additional submission made by the learned counsel was that the right of prior purchase is not available to the decree holder (plaintiff) in terms of section 9 of the Act also as he being a party to the initial sale cannot claim right of prior purchase in respect of the same property. Learned counsel urged that this is a clear case of lack of inherent jurisdiction as the trial court did not have the power to entertain and hear the suit because of the bar contained in sections 5 and 9 of the Act. Learned counsel, thus, urged vehemently that the petitioner having attained the status of the legal representative of respondents (judgment debtors) 3 to 5 and being an effected persons is entitled to raise objection in regard to the execution of the decree, which is nullity. Learned counsel cited several authorities, including. Lekhraj v. Ranjit Singh and others, AIR 2017 SC 4015 , 1Foreshore Cooperative Housing Society Limited v. Praveen D. Desai, AIR 2015 SC 2006 , Maya Devi v. Lalita Prasad, AIR 2014 SC 1356 , Saroop Singh and Anr. Learned counsel cited several authorities, including. Lekhraj v. Ranjit Singh and others, AIR 2017 SC 4015 , 1Foreshore Cooperative Housing Society Limited v. Praveen D. Desai, AIR 2015 SC 2006 , Maya Devi v. Lalita Prasad, AIR 2014 SC 1356 , Saroop Singh and Anr. v. Union of India and Anr., (2011) 11 SCC 198 , Gurdev Singh v. Narayan Singh, AIR 2008 SC 630 , Sunder Dass v. Ram Prakash, AIR 1977 SC 1201 and Kiran Singh and others v. Chaman Paswan and others, AIR 1954 SC 340 . 8. Per contra, learned counsel, Mr. M.A. Qayoom, appearing on behalf of the decree holder/respondent No. 6 (now her LRs) submitted that no objection in regard to the applicability of section 5 or section 9 was taken in the written statement filed on behalf of respondents (defendants) 3 to 5 before the trial court nor was it evident from the pleading that section 5 or section 9 was attracted. Learned counsel further pointed out that the decree holder's right of prior purchase qua the suit property in terms of sections 18, 19 and 20 of the Act read with section 15 has been upheld by the learned Division Bench in the judgment dated 14.09.2012 passed in the LPA (supra) so the same question could not have been raised by the petitioner by invoking section 47 of the Code. In regard to section 5 of the Act, learned counsel submitted that lack of jurisdiction to hear a suit is not relatable to non available of relief in respect of a given subject matter so even if it is presumed for the sake of argument that section 5 of the Act is attracted, the jurisdiction of the trial court to hear the suit was not ousted. Learned counsel also relied upon Kiran Singh's case and Sunder Dass' case (supra). 9. I may at the outset state that it is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. 9. I may at the outset state that it is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary territorial or whether it is in respect of the subject matter of action, strikes at the very authority of the court to pass a decree and such a defect cannot be cured even by the consent of the parties. Any order or judgment/decree passed by a court without jurisdiction would be coram non-judice and nullity, (see Kiran Singh v. Chaman Paswan and Sunder Dass v. Ram Prakash and Saroop Singh and Anr. v. Union of India and Anr.). 10. Jurisdiction of the civil courts to entertain and try the civil suits is governed by section 9 of the Code. Section 9 confers power and jurisdiction to the courts to try all suits of civil nature excepting the suits of which their cognizance is barred 'either expressly or impliedly'. Explanation I to section 9 clarifies as to what a suit of civil nature is by providing that a suit in which right to property or to an office is contested is a suit of civil nature. The power and jurisdiction of civil courts under section 9, however, is subject to other provisions contained in the Code. Whereas section 9 confers inherent jurisdiction to the civil courts to entertain and try all the suits of civil nature, the said jurisdiction is governed by certain other factors under the Code itself, like the territorial jurisdiction (sections 16, 17, 18, 19 and 20) and the pecuniary jurisdiction (sections 6 and 15). In addition, jurisdiction of the civil courts to entertain a suit may be barred under the provisions of specific (special) laws, like that under the Land Revenue Act, Agrarian Reforms Act etc. 11. The Act in none of its provisions creates bar on the jurisdiction and power of a civil court to hear a suit for pre-emption in regard to any property, whatsoever. 11. The Act in none of its provisions creates bar on the jurisdiction and power of a civil court to hear a suit for pre-emption in regard to any property, whatsoever. What section 5 of the Act provides is that there shall be no right of prior purchase in respect of the sale of or foreclosure of right to redeem '(a) a shop, a serai or market or some other property used as a place for transaction of public business' and '(b) a Dharamshala, place of worship or other similar building'. The Act does not provide even by implication that a suit for pre-emption in respect of such a property shall not be entertained. Whether a particular property, in respect of which the right of prior purchase is claimed, satisfies and falls within the ambit of section 5, is a question, which, if raised in a suit for pre-emption, is required to be decided in the same suit and in case the property satisfies section 5, the suit shall be dismissed. It needs to be understood that lack of jurisdiction to hear a suit cannot be correlated with the non availability of the relief claimed in the suit. Only the court, which can grant a relief, can decide the question as to whether such relief in respect of a particular suit properly is available or not. To say more clearly, it is the civil court, which can hear a suit for pre-emption and can decide whether right of prior purchase in respect of a given suit property is available or not. The objection/plea in regard to the jurisdiction of the trial court on this score therefore, is liable to be rejected. 12. Contextual plea to the effect that non availability of the right of prior purchase under section 5 of the Act was apparent on the face of record in view of the description of the suit property given in the amended plaint cannot be entertained at all for the reason that an executing court cannot be go beyond the decree nor can it question its legality or correctness (see Sunder Dass' case supra). It is noticed that no objection in regard to the jurisdiction of the court was taken in the written statement filed by the respondents 3, 4 and 5. It is noticed that no objection in regard to the jurisdiction of the court was taken in the written statement filed by the respondents 3, 4 and 5. Applicability of section 5 in context of the plea so taken involves a question of fact, as to whether the suit property is the one as mentioned in section 5(a) and is used for transaction of public business. Plea in this regard having not been taken at the trial of the suit, cannot be allowed to be taken at the execution stage. 13. The objection/plea in regard to availability of the right of prior purchase to decree holder (plaintiff) qua the suit property rather should not have been raised by the petitioner by invoking section 47 of the Code in view of the clear finding in this regard recorded by the learned Division Bench in the judgment dated 14.09.2012 (supra) to which petitioner is a party, whereby the right of prior purchase of the decree holder has been upheld by the learned Bench. Relevant portion of the said judgment in paragraph No. 34 is culled out for ready reference: "34. When the facts of the present case are examined in the light of the principles laid down in the aforesaid judgments, no doubt is left that the learned Single Judge has committed error in law by setting aside the judgment and decree which has attained finality. The appellant is entitled to exercise the right of prior purchase under Sections 18, 19 and 20 read with Section 15 because the property involved is urban immoveable property and the right has been recognized by Section 15 in respect of the co-sharer of such property........" 14. The objection in reference to section 9 of the Act, which seems to have been taken for the first time in this petition, from its very nature is misconceived and deserves outright rejection. Section 9 deprives right of prior purchase to a party to the sale when the sale is made by the joint owners. Objection in terms of section 9 can be raised only against a vendor who had been party to the sale qua which right to prior purchase has been claimed. 15. Section 9 deprives right of prior purchase to a party to the sale when the sale is made by the joint owners. Objection in terms of section 9 can be raised only against a vendor who had been party to the sale qua which right to prior purchase has been claimed. 15. The objection in regard to identification of the suit property has been well considered by the learned trial/executing court in paragraph 16 of the impugned order and I find no reason for showing indulgence in this regard. Nonetheless, it has been noticed that petitioner claims to have acquired right in the suit property by virtue of the gift thereof made to him by the respondents (judgment debtors) 3 to 5 and it being so no dispute in regard to the identification of the said property can be raised by the petitioner. 16. For all that said and discussed above, this revision petition has no merit and is, therefore, dismissed. 17. This Court vide order dated 01.10.2013 issued following directions to the Deputy Commissioner, Srinagar: "a. The Deputy Commissioner, Srinagar to take over possession of property, for which decree has been passed and has been put to execution, from the petitioner and put the same in the custody of the Tehsildar concerned of the area. b. After taking over the property from the petitioner, the residential house shall be placed on his superdari. The petitioner shall execute the supurdnama before the Deputy Commissioner, undertaking therein that he will not transfer the house; he will not create any third party interest in the house and will not change the nature of the house. The, prima facie, observations made in this order shall not affect the disposal of this revision petition. c. Deputy Commissioner shall submit compliance report to the Registrar Judicial of this Court by or before 8th October, 2013." 18. As per the compliance reports furnished on behalf of the Deputy Commissioner, Srinagar on 03.12.2013 and 21.11.2014, the aforementioned directions have been complied with and the suit property is now in the custody of the Tehsildar, Shaltang. The trial/executing court, therefore, shall go ahead with the execution of the decree by asking the Deputy Commissioner, Srinagar and the Tehsildar, Shaltang to handover the suit property to the decree holder (now her LRs). 19. The trial/executing court, therefore, shall go ahead with the execution of the decree by asking the Deputy Commissioner, Srinagar and the Tehsildar, Shaltang to handover the suit property to the decree holder (now her LRs). 19. Registry shall send a copy of this judgment along with copies of aforementioned compliance reports and the record of the case to the trial/executing court. The record of the file No. 24 of the court of Judge (Small Causes), Srinagar, which has been called in this Court by virtue of order dated 01.10.2013 (supra) shall be remitted back along with a copy of this judgment for its disposal, having regard to and in view of this judgment. 20. Disposed of.