Objections to jurisdiction must be raised at the earliest opportunity; failure to do so precludes raising them later in appellate proceedings.

JUDGMENT :

1. The petition bearing OW104 No. 130/2017 has been filed by the petitioners under section 104 of the Constitution of the erstwhile State of Jammu and Kashmir (now Article 227 of the Constriction of India) for setting aside the orders dated 16.03.2017 and 04.10.2017 passed by the court of learned Munsiff Jammu in execution application titled “Sher Singh Vs. J&K State Forest Corporation & Ors”.

2. Initially, a suit for permanent prohibitory injunction was filed by the respondent against the petitioners for restraining them from terminating the contract executed between the plaintiff (respondent) and the defendants (petitioners) in respect of the activities of felling, hand sawing and pathroo /head cartage of the timber in compartment No. 76-Ghulabgarh, Forest Division Mahore, of the market volume of 1.457 lac CFT standing (72,800/- CFT Sawn) and allotting the same to any other contractor or doing the aforesaid activities departmentally, with a further relief in the nature of mandatory injunction directing the petitioners to grant extension for further period of two years to the respondent for completing the aforesaid activities.

3. The said suit came to be objected to by the petitioners by filing a written statement and an application under Section 34 of the Arbitration Act for staying the proceedings of the suit. Thereafter, the suit was amended by the respondent and prayer for mandatory injunction commanding the petitioners to grant an extension for a period of two years for completing the execution of work and further direction to the petitioners to release the payments for the work done by him indicated in para-4 of the plaint as per the rates agreed upon in the agreement as well as the CDR of Rs. 50,000/- with interest at the rate of 24% per annum, was also made. The amended suit was also objected to by the petitioners by filing written statement. The petitioners, thereafter, did not choose to contest the suit and ultimately, the court of learned Munsiff, Jammu vide its judgment dated 31.08.2009 decreed the suit in ex parte and the respondent was held entitled to amount of Rs. 3,50,550/- with interest at the rate of 9% with effect from October 1993 till its realization. The respondent was also held entitled to release of CDR of Rs. 50,000/-. After the suit was decreed, the respondent filed an execution application before the court of learned Munsiff, which was objected to by the petitioners by raising the following objections:

“1. That the judgment is a nullity and as such, is not executable. It is also submitted that the judgment and decree has been passed by the court which did not possess the jurisdiction to decide the case/suit.

2. That it is also submitted that the judgment has been passed without taking into consideration the facts of the case and ignoring all the legal positions on the subject. Otherwise also, the judgment and decree has been passed in violation of statutory and legal provisions, and, in any situation, the judgment and decree is null and void and cannot be enforced in law. The judgment has been passed by relying upon irrelevant facts and relying upon inadmissible evidence which is impermissible under law and against the statutory provisions, as such, the judgment and decree is nullity in the eyes of law.

3.That the Hon'ble court while passing the judgment failed to consider the written statement filed, that the petitioner has executed the work of Rs. 97,253/- and the same payment has been made to the petitioner. It was also mentioned in the written statement that the petitioner has executed the work of Rs. 2.00 lacs.

4. That otherwise also, it is submitted that the release of payment cannot be granted by mandatory injunction, and the same can be done only when the suit for recovery is filed after annexing the requisite court fees under the relevant statute. This has also not been done in the present case, violating the mandatory statutory provisions, as such, the judgment and decree is nullity,