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2026 Supreme(Online)(J&K) 623

HIGH COURT OF JAMMU AND KASHMIR
Sanjay Dhar, J
ABDUL SAMAD BHAT AND ORS. – Appellant
Versus
MST. RAHTI AND ORS. – Respondent
RSA 2 / 2024

Advocates:
For the Appellants/Petitioners: Sheikh Hilal, Shazia Kamal
For the Respondents: J. H. Reshi

A second appeal lies only on a substantial question of law; plaintiffs alleging fraud in obtaining an ex parte decree must prove it at the earliest opportunity and cannot raise new grounds belatedly.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second appeal - Substantial question of law - Test for determining substantial question of law: whether question is of general public importance or directly and substantially affects rights of parties and is either an open question not finally settled or calls for discussion of alternative views - Mere application of settled principles does not give rise to substantial question of law (Paras 19-21).

(B) Code of Civil Procedure, 1908 - Order IX Rule 13 - Application to set aside ex parte decree - Suppression of earlier unsuccessful application - Plaintiff must plead all grounds at earliest opportunity - Failure to do so precludes later reliance (Paras 25-27, 33).

(C) Specific Relief Act, 1963 - Section 34 proviso (in pari materia with J&K Specific Relief Act, Section 42) - Declaration of right - Plaintiff must seek consequential relief if entitled - Suit for declaration without claiming possession when defendant is in possession is not maintainable (Para 34).

(D) Evidence Act, 1872 - Section 73 - Application for forensic examination of signatures - Discretion of trial court - Not obligatory to send document to expert (Para 11). (E) Fraud - Judgment or decree obtained by fraud is a nullity - However, party alleging fraud must plead and prove it at the earliest opportunity - Suppression of material facts by plaintiff themselves disentitles them to equitable relief (Paras 29-33).

Facts of the case:
The appellants/plaintiffs filed a suit to set aside an ex parte judgment and decree dated 13.06.2001 passed by the Sub Judge, Budgam, in a suit filed by the respondents/defendants. The plaintiffs claimed that they were never served with summons and that the decree was obtained by fraud. The defendants contended that the plaintiffs had appeared through counsel but later stopped appearing, and that the plaintiffs' earlier application under Order IX Rule 13 CPC had been dismissed. The trial court framed issues and, after the plaintiffs failed to lead oral evidence or prove service irregularity, dismissed the suit. The first appellate court affirmed. In appeal, the plaintiffs raised, for the first time, a compromise decree from 1976 concerning the same property, alleging its suppression by the defendants. The High Court heard the second appeal.

Findings of Court:
The High Court held that no substantial question of law arose. The plaintiffs did not enter the witness box to prove non-service, and their earlier application under Order IX Rule 13 had been dismissed on its own merits. The compromise decree of 1976 was not pleaded at trial or in the earlier application; the plaintiffs themselves suppressed material facts. Moreover, the suit lacked a prayer for possession despite the defendants being in long possession, making it barred by the proviso to Section 34 of the Specific Relief Act (Para 34). The appeal was dismissed.

Issues: (1) Whether the service of summons in the earlier suit was proper and whether the ex parte decree was vitiated by fraud? (2) Whether the suppression of the 1976 compromise decree by the defendants constituted fraud? (3) Whether the suit was maintainable without claiming possession? (4) Whether any substantial question of law arose for a second appeal?

Ratio Decidendi: The court ruled that a second appeal lies only on a substantial question of law. The plaintiffs failed to prove their own pleadings; non-service of summons was not substantiated. The fraud argument regarding the compromise decree was raised too late and the plaintiffs themselves were guilty of suppression. Further, the suit without a prayer for possession was barred by Section 34 proviso of the Specific Relief Act. Hence, no interference was warranted.

Result: Appeal dismissed. (Para 35)

JUDGMENT

1) The appellants/plaintiffs have, by virtue of the present Civil 2nd Appeal, challenged the judgment and decree dated 05.06.2012 passed by the learned Sub Judge, Budgam, as upheld by the learned Additional District Judge, Budgam, in terms of judgment and decree dated 12.06.2023 in a suit filed by the appellants/plaintiffs against the respondents/ defendants.

2) It seems that the appellants/plaintiffs filed a suit against the predecessor-in-interest of the respondents/ defendants before the Court of learned Sub Judge, Budgam (hereinafter “the trial court”) seeking a decree for setting aside the exparte decree dated 13.06.2001 passed by the said Court against the appellants/plaintiffs.

3) According to the plaintiffs, plaintiff No.1 is the owner of land measuring 5 kanals under Survey No.761 situated at Village Naroo Tehsil and District Budgam and the said land is in permissive possession of the defendants for the last more than ten years. It was pleaded that the defendants in connivance with revenue agencies managed mutations in terms of Section 4 and 8 of the J&K Agrarian Reforms Act in their favour in respect of the said land. The said mutation orders were challenged by plaintiff No.1 before the Joint Agrarian Reforms Commissioner, Budgam, by way of an appeal but the same was dismissed, whereafter plaintiff No.1 filed a revision petition before the J&K Special Tribunal at Srinagar. The order of the Joint Agrarian Reforms Commissioner, Budgam, was set aside and the matter was remanded to Joint Agrarian Reforms Commissioner, Budgam. It was further pleaded that the defendants had filed a suit against the plaintiffs before the Court of learned Sub Judge, Budgam, titled ‘Ghulam Rasool Kuchay and another vs. Samad Bhat and others’ in which they obtained a decree in exparte against the plaintiffs.

4) The plaintiffs challenged the impugned judgment and decree dated 13.06.2001 passed by the learned Sub Judge, Budgam, on the grounds that no summons was ever served upon them. It was contended that signatures of plaintiffs Samad Bhat and Rashid Bhat are not appearing on the said summons and that the signatures appearing on the summons pertain to some other persons. According to the plaintiffs, the exparte judgment and decree dated 13.06.2001 is a product of fraud perpetrated by the defendants upon the court. It was further contended that the defendants herein, on the basis of false evidence, projected themselves to be the owners in possession of land in question and, therefore, they have perpetrated fraud upon the court.

5) The suit was contested by the defendants by filing their written statement wherein it was pleaded that the suit land is in their peaceful possession for the last more than 35 years and that the same has devolved upon them in terms of Section 4 and 8 of the Agrarian Reforms Act. According to the defendants they have been cultivating the suit land since Kharif 1971 and even prior to that as tenants, as a consequence whereof, ownership rights in respect of the said land have been vested upon them in terms of Section 4 and 8 of the Agrarian Reforms Act. It has been contended that after the remand of case to the Joint Agrarian Reforms Commissioner, Budgam, the appeal of the plaintiffs has again been dismissed and the mutations under Section 4 and 8 of the Agrarian Reforms Act in favour of the defendants have been upheld.

6) Regarding the civil suit filed by the defendants against the plaintiffs before the Court of Sub Judge, Budgam, it has been submitted that the plaintiffs herein were duly summoned and served but they did not choose to pursue their case. It has been further submitted that the plaintiffs herein appeared before the court through their counsel but later on stopped appearing, as a consequence whereof, exparte proceedings were initiated against them. According to the defendants, they led exparte evidence in the suit and a declaratory and injunctive decree came to be passed

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2026 Supreme(Online)(J&K) 623

HIGH COURT OF JAMMU AND KASHMIRSanjay Dhar, JABDUL SAMAD BHAT AND ORS. – AppellantVersusMST. RAHTI AND ORS. – RespondentRSA 2 / 2024

A second appeal lies only on a substantial question of law; plaintiffs alleging fraud in obtaining an ex parte decree must prove it at the earliest opportunity and cannot raise new grounds belatedly.

Cases Referred (3)

HIGH COURT OF JAMMU AND KASHMIR
Sanjay Dhar, J
ABDUL SAMAD BHAT AND ORS. – Appellant
Versus
MST. RAHTI AND ORS. – Respondent
RSA 2 / 2024