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2012 Supreme(J&K) 230
JAMMU & KASHMIR HIGH COURT
Mohammad Yaqoob Mir, J.
Abdul Samad Mir & Ors. -Appellant
Versus
Abdullah Mir & Ors. -Resopndent
C. Rev. No.128/2009
Decided On : 25-05-2012
Mr. Z. A. Qureshi for the Petitioner.
Mr. A. M. Dar for the Respondent.
The main legal point established in the judgment is the court's invocation of supervisory powers under Section 104 of the State Constitution to prevent injustice resulting from prolonged litigation and the emphasis on providing an opportunity for both parties to lead evidence and to explore the possibility of amicable settlement.
Headnote:
Condonation of Delay - Application for Bringing on Record Legal Representatives - Agrarian Reforms Act, 1976 - Section 104 of the State Constitution - Order XXII of CPC - Section 5 of the Limitation Act
Fact of the Case:
The application for bringing on record legal representatives of a deceased plaintiff was filed after the prescribed period of limitation, leading to the dismissal of the application for condonation of delay and the deemed abatement of the suit to the extent of the deceased plaintiff. The suit involved a dispute over landed property and had been pending for a significant period of time.
Finding of the Court:
The court found that the order for abatement was not appealable and that the order was not amenable to revisional jurisdiction. However, the court invoked supervisory powers under Section 104 of the State Constitution to prevent injustice resulting from the long-drawn litigation. The court also emphasized the need to provide an opportunity for both parties to lead evidence and to explore the possibility of amicable settlement.
Issues: The issues included the timeliness of the application for bringing on record legal representatives, the appealability and revisability of the order for abatement, and the need to address the injustice resulting from prolonged litigation.
Ratio Decidendi: The court invoked supervisory powers under Section 104 of the State Constitution to prevent injustice resulting from the long-drawn litigation and emphasized the need to provide an opportunity for both parties to lead evidence and to explore the possibility of amicable settlement.
Final Decision: The court allowed the petition, set aside the impugned order, and remitted the case back to the trial court with directions to provide an opportunity for both parties to lead evidence and to explore amicable settlement. The court also emphasized the need for the trial court to ensure a timely and fair disposal of the suit.
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. 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 tha
