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2016 Supreme(J&K) 286
JAMMU AND KASHMIR HIGH COURT
Tashi Rabstan, J.
Bharat Sanchar Nigam Ltd. & Anr. - Petitioners
Versus
Ganeshi Devi Trust & Ors. - Respondents
Petn. u/S. 104 No. 126 of 2013
Decided On : 01-09-2016
For the Petitioner:K.K. Pangotra, Advocate.
For the Respondents:R.K. Gupta, Sr. Advocate and Ratish Mahajan, Advocate.
The central legal point established in the judgment is the need for caution in exercising the powers under Article 104 of the Constitution of Jammu and Kashmir, and the parameters for the exercise of jurisdiction under Section 104.
Headnote:
Amendment of Issues - Constitution of Jammu and Kashmir - Section 104 - 1, 2, 3, 4.1-A - The court discussed the issues related to privity of contract, termination of tenancy, court fees, and necessary party. The court emphasized the power of the trial court to strike down unnecessary parties and substitute others for determination of the real matter in dispute. The court also highlighted the need for caution in exercising the powers under Article 104 of the Constitution of Jammu and Kashmir, emphasizing that such powers should be utilized sparingly and in rare cases.
Fact of the Case:
The petitioners challenged the order of the trial court, which declined their application for amendment of issues in a suit related to ejectment and recovery of amount.
Finding of the Court:
The court found that the trial court's decision did not warrant interference, as it was well-reasoned and did not result in any gross miscarriage of justice.
Issues: The issues revolved around the framing of legal issues, the competence-jurisdiction of the trial court, and the abuse of process of law by the petitioners.
Ratio Decidendi: The court emphasized the need for caution in exercising the powers under Article 104 of the Constitution of Jammu and Kashmir, and highlighted the parameters for the exercise of jurisdiction under Section 104.
Final Decision: The petition was dismissed as the court found no grounds for interference with the trial court's decision.
Tashi Rabstan, J.
Petitioners in instant petition under Section 104 of the Constitution of the Jammu and Kashmir, impugn order dated September 17th, 2013, passed by learned 1st Additional District Judge, Jammu, (for brevity "Court below") in a suit titled Smt. Ganeshi Devi Trust and another v. Union of India and others filed by respondents 1 and 2 for ejectment of petitioner No. 2 and proforma respondent from House No. 69 D/C, Gandhi Nagar, Jammu and for recovery of amount of Rs. 11,64,725/-, whereby prayer of the petitioners for amendment of the issues has been declined.
2. It is contended that vide order dated 20-10-2012, learned trial Court settled following issues:-
1. "Whether there is no Privity of Contract between the parties and the suit is filed by incompetent persons as Mr. Tej Ram Gupta who executed the agreement of lease has not been arrayed as a party to the suit and hence the suit is liable to be dismissed? OPD
2. Whether no notice of terminating the tenancy has been issued and as such the suit is premature? OPD
3. Whether the proper court-fees have not been fixed if so, what is the correct fee payable? OPD
4. Whether the plaintiff have stepped into the shoes of Lt. Sh. Tej Ram Gupta by virtue of the sale deed dated 5-5-1992 and registered on 12-5-1992 where by the plaintiff No. 1 is the sole trustee and plaintiff No. 2 is the beneficiary? OPP
5. Whether the defendants were immediately put to notice of the acquisition of suit property and their status as land lord? OPP
6. Whether the defendant Nos. 1 and 2 have not paid after August, 2008? OPP
7. Whether the lease stands terminated vide notice dated 8th of Nov., 2010 but the defendants have failed to vacate the premises without any reasonable cause and excuse? OPP
8. Relief? OPP.
3. It is pleaded that as the issues were not properly framed, petitioner No. 2 and proforma respondent filed application for their amendment and learned trial Court did not amend the issues but on the basis of said application framed two additional issues and out of them four issues were treated as legal issues, which are as under :-
1. Whether there is no Pivity of Contract between the parties and the suit is filed by in-competent persons as Mr. Tej Ram Gupta who executed the agreement of lease has not been arrayed as a party to the suit and hence the suit is liable to be dismissed? OPD
2. Whether no notice of terminating the tenancy has been issued and as such the suit is premature? OPD
3. Whether the proper Court-fees have not been fixed if so, what is the correct fee payable? OPD
4.1-A. Whether BSNL is a necessary party to the suit and the suit is bad for non-joinder of necessary party. If so, what is its effect on the suit? OPD.
4. Learned trial Court vide order dated 17-9-2013 decided the proposed issues as preliminary issues. Against said order dated 17-9-2013, present petition has been filed on the ground that the issues have not been properly framed and the same are required to be amended on the grounds taken in it. It is argued that non-framing of issues as prayed for in the application resulted in passing impugned order, which is totally against facts and law. It is argued that issues decided vide order dated 17-9-2013 are totally against facts and law, which has occasioned miscarriage of justice. It is contended that contract was between Sh. Tej Ram Gupta and BSNL - petitioner No. 1. The suit could be filed against BSNL, as such, petitioner No. 2 and proforma respondent were neither necessary parties nor proper parties to the suit.
5. On notice, respondents filed objections contending therein that there is neither any error apparent on the face of record nor has order impugned resulted in any gross failure of justice. It is further contended that defendants 1 and 2 in the suit, i.e., petitioner No. 2 and respondent No. 9 herein, filed a joint written statement. However, in the present petition, defendant No. 1 has been arrayed as proforma respondent No. 9, which is not permissible unde
