Azam Afandi And Others @APPELLANT@Hash Ghulam Hyder Rather And Others

By the medium of this revision petition, petitioners seek quashment of judgment/order dated 30.03.2018 passed in File No.20/Civil Appeal titled

“Ghulam Hyder Rather Vs. Mohammad Akram Afandiâ€, by the Court of learned Principal District Judge, Budgam, (hereinafter referred as

‘the Appellant Court’) allowing the said appeal and setting aside the judgment 24.05.2016, passed by the Court of learned Sub Judge, Budgam

(hereinafter referred as ‘thetrial Court’) in a Civil Suit titled “Ghulam Hyder Rather Vs. Mohammad Akram Afandi†remanding the case

back to the Trial Court to proceed in the matter in accordance with law.

The case set up in the plaint is that the plaintiffs/respondents are the owners of land falling under Survey No.548, measuring 1 Kanal 12 Marlas,

Survey No.554 measuing 8 Kanals 5 Marlas and Survey No.564 measuring 3 Kanal 13 and Marlas, situated in village Inchgam. The suit land was in

possession of defendant as mortgagee. Later on the defendant was declared by Government as Persona-non-Grata and the land was taken by the

Custodian. However by virtue of decision of Custodian, Kashmir, dated 20.01.1982, the suit land was restored to defendant as a mortgagee which

continued to be in his possession. It is stated that after restoration of possession, plaintiffs demanded back the possession but the defendant started

creating dispute. The nature of land in dispute, according to plaintiffs, is an orchard and the law is clear that dispute concerning the orchard land is to

be agitated before the civil court and not before the revenue court as per the provisions of Agrarian Reforms Act, and that is why the plaintiffs filed a

civil suit for restitution of mortgaged property before the civil court. Â

The main facts emanating from the present petition are that a suit was filed by the respondents under Jammu and Kashmir Restitution of

Mortgaged Properties Act 1976 (for short referred as ‘the Act’). It is contended that in terms of Section 4 of the Act, the trial court has no

powers vested with it, to act as a Tribunal and such a suit can be heard only by a Judicial Officer, to be appointed by the Government by a notification.

The learned trial Judge in terms of order/judgment dated 24.05.2016 dismissed the suit after hearing the parties and held that the trial Court has no

jurisdiction to adjudicate the mater in view of the provisions of Section 4 of the Act by providing liberty to the plaintiff to approach proper forum for

redressal of grievances, if any. The order/judgment dated 24.05.2016 passed by the trial Court was challenged by the respondents before the

Appellate Court in an appeal bearing No.20/Civil Appeal. The Appellate Court allowed the said appeal vide judgment dated 30.03.2018, setting aside

the order passed by the trial Court and remanded back the matter to court below to proceed in the matter in accordance with law and also directed the

parties to appear before the trial court on 25.04.2018. The order dated 30.03.2018 passed by the Appellate Court is impugned in the present revision

petition.

The only and precise ground of challenge thrown to the order impugned in this petition is that the Appellate Court has erred in passing the same and

that too without appreciating the provisions of the Act and came to the conclusion that the civil court has the jurisdiction to deal with the matter. It is

contended that the jurisdiction of the civil court is barred by Section 16 of the Act and therefore the findings of the Appellate Court that the trial court

has the jurisdiction is against the mandate of Section 16 of the Act. It is further contended that the appeal filed by the respondents was not

maintainable.

Heard learned counsel for the parties, considered their submissions and perused the record and judgements passed by court below.

The main controversy in the present revision petition revolves around the question of jurisdiction of civil court to adjudicate the suit claiming

possession of land in question under the Jammu and Kashmir Restitution of Mortgaged Properties’ Act, 1976.

Learned counsel for the petitioner has stated that in terms of Section 4 of the Jammu and Kashmir Restitution of Mortgaged Properties’ Act

1976, the trial Court has no jurisdiction vested with it, to act as Tribunal. Section 4 of the Act given the submission made by learned counsel of

petitioner is advantageous to be reproduced hereunder:-

“4. Jurisdiction to hear petitions.â€" The Government may, by notification empower a Collector, a Chairman of the Debt Conciliation Board,

appointed under the Jammu and Kashmir Debtor Relief Act, 1976 or a Judicial officer not below the rank of Subordinate Judge to Act as the Tribunal

under this Act and to hear and dispose of all petitions under this Act and may likewise determine the pecuniary and territorial jurisdiction of the

officers so empowered. The Tribunal shall, while exercising powers under this Act, be deemed to be a Court.â€​

Provisions of Section 4 require appointment by a notification of an authority to act under and in terms of the Act. No such notification has been

placed on record to suggest that any authority has been empowered by the Government to act as an Authority in terms of provisions of the Act. Thus,

jurisdiction of Civil Court qua subject of the suit has not been barred by the Act.

Learned counsel for the petitioner has also contended that the jurisdiction of Civil Court is barred by Section 16 of the Act. This contention of the

petitioner is no more res integra as this Court has dealt with this issue thoroughly in case titled Yog Raj v. Kuldeep Raj Gupta, reported in AIR 2002

JK 12. It would be profitable to reproduce relevant portion thereof hereunder:-

“57. Section 16 of the 1976 Act deals with the jurisdiction of the Civil Court. The bar of jurisdiction is with regard to limited matters. This section

provides as under:

“Jurisdiction of Civil Courts barred:--No Civil Court shall have jurisdiction to entertain any claim to enforce any right under a mortgage declared

extinguished under this Act or to question the validity of any proceedings under this Act.â€​

A perusal of the above statutory provisions would indicate that this section does not completely oust the jurisdiction of the civil Court. The civil

Court’s jurisdiction is barred only with regard to two matters. These are:

i) Not to entertain any claim to enforce any right under a mortgage declared extinguished under this Act, or

ii) To question the validity of any proceedings under this Act.

None of the conditions as mentioned in Section 16 are present in this case. Therefore, the argument that on account of the provisions contained in

J and K Mortgaged Property Act of 1976, the suit was barred and the Civil Court had no jurisdiction, is an argument which cannot be accepted.â€​

There is nothing in Section 7(1) and 16 of the Act to bar jurisdiction of Civil Court either expressly or impliedly to entertain a suit for restitution of

mortgaged property except to the extent indicated therein. The bar is only for such claims, which have been declared extinguished under the Act or to

questioning the validity of any proceeding under the said Act, it is well settled law that the exclusion of the jurisdiction of the Civil Courts is not to be

readily inferred from the mere fact of the existence of a statutory Tribunal which may give the relief as may be had in the Civil court, nor is the

cognizance of a suit by the Civil Court to be regarded as barred merely because another statutory proceeding for the object sought to be gained by a

suit, is available. There must be something in the provisions of the Statute constituting such Tribunal or providing for such proceeding to rule out the

remedy of a suit in the Civil Court.

Where a statutory enactment creates rights and liabilities without providing machinery for the enforcement of same and the dispute is of civil

nature, then the civil court has jurisdiction to try the suit unless barred impliedly or expressly. If there is any doubt about the ousting of jurisdiction of a

Civil Court, the Court will lean to an interpretation which would maintain the jurisdiction. A plaint cannot be rejected only by reading the preamble or

nomenclature of the plaint. For determining whether a plaint discloses cause of action or not, averments in the plaint alone are relevant and material.

The contention of the petitioner that the appeal was not maintainable is also misplaced as Section 2(2) of Civil Procedure Code clearly states that

rejection of plaint is deemed to be a decree.

Hence the appeal from deemed decree is maintainable.

It is pertinent to mention here that the fundamental principle of English Law that where there is a right, there is a remedy (ubi jus, ibi remedium)

has been adopted by the Indian Legal system also. Generally, the law will not countenance a situation where as person has a legal right but no means

of enforcing it. The law will provide a means. Accordingly, where a litigant having a grievance of a civil nature has a right to institute a civil suit in a

competent civil court unless expressly or impliedly barred by any statute. It would be apt to reproduce relevant portion of Section 9 on Jurisdiction of

Civil Court of CPC hereunder:-

“Section 9: Courts to try all civil suits unless barred: The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a

civil nature excepting suits of which their cognizance is either expressly or impliedly barredâ€​.

Section 9, thus, clearly envisions that civil court has jurisdiction to try a suit if two conditions are fulfilled: the suit must be of civil nature: and the

cognizance of such suit should not have been expressly or impliedly barred.

In Black Law Dictionary, the word “civil nature†has been defined as relating to private rights and remedies sought by civil action as

contrasted with criminal proceedings. In law it is understood as an antonym of criminal. Explanation-I of Section 9 of Civil Procedure Code, provides

that right to property or to an office is contested is a suit of civil nature. Even the preamble of the Jammu and Kashmir Restitution of Mortgaged

Properties Act, 1976 provides that the object of the Act is to provide for restitution of certain mortgaged properties in the State of Jammu and

Kashmir that is (a) mortgage of immovable property with or without possession whether in writing and registered under the Jammu and Kashmir

Registration Act, Svt. 1977, or not, in which principal money or the value of the goods actually advanced by the mortgagees to the mortgagor does not

exceed ten thousand rupees and which is subsisting on the date this Act came into force; and (b) a mortgages securing loan for purposes of building of

a house-boat regardless of the amount of the principal money or the value of the goods-actually advanced by the mortgagee to the mortgagor and

which the subsisting on the date this Act comes into force.

Thus, it is clear that mortgages in which principal money or the value of the goods actually advanced by the mortgagees to the mortgagor exceed ten

thousand rupees are not to be dealt in accordance with the provisions of the Act. Even the Civil Procedure Code under 34 deals with sale, redemption

and foreclosure of immovable mortgaged property. The net result of discussion in this paragraph is that even in absence of special Act to deal with

restitution of mortgaged property, the Civil Court can decide the matter regarding mortgages being of civil nature.

As far as expressed, bar is mentioned in Section 9 C.P.C, this question has been comprehensively dealt with by the Constitution Bench of five

judges of the Supreme Court in case of Dhulabhai v. State of M.P., AIR 1969 SC 78. Pertinent excerpt whereof is infra:-

“Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate

remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the

particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the

sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express

exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the

inquiry 11 may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination

of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and

whether remedies normally associated with actions in civil courts are prescribed by the said statute or notâ€​.

In “D.R. Chawla and ors. v. Municipal Corporation of Delhiâ€, reported in (1993) 3 SCC 162, the Supreme Court held that where statutory

enactments only create rights or liabilities without providing forums for remedies, any person having a grievance that he had been wronged or his right

is being affected, can approach the ordinary Civil Court, but in case a Special Forum is provided for enforcement of such right or for protection or

enforcement of a liability without any authority in law, the ouster of the civil court's Jurisdiction can be upheld on the finding that the rights and

liabilities in question have been created by the Act without touching the existing Common Law rights and the remedy provided therein is adequate and

complete. But where adequate redressal machinery is not provided under the Statutory Forum, the civil court can still examine the correctness of the

order passed under the Statute.

Adequate and efficacious alternative remedy is one of the imperative prerequisites that an Act should furnish and in case such recourse and option

is lacking in, exclusion of civil court cannot be made use of to make a person remediless. In the wordings of the Supreme Court in case of “Dhruv

Green Field Ltd. v. Hukam Singh and ors.,2002 (6) SCC 416, the following principles have been laid down:-

If there is express provision in Act but an examination of the provisions contained therein leads to a conclusion in regard to exclusion of jurisdiction of

a civil court, the court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the

affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If however, no such adequate and effective remedy is provided

then exclusion of the jurisdiction of the civil court cannot be inferred.

Now the question arises for consideration is that can cause of action be gathered from the averments made in the plaint and the relief claimed

therein in view of the defective preamble. As it is also contended by learned counsel for the petitioners that the suit was filed under the provisions of

the Act but the Appellate Court has held that averments made in the plaint constitute sufficient cause of action for Civil Court to entertain the plaint

and decide it in accordance with law. Perusal of plaint also reveals that the plaintiffs have sought a relief to restore the possession of the mortgaged

property and also sought that the respondents be restrained till the final disposal of the case and not to alienate suit land to any person by way of Gift,

sale deed, exchange deed etc., and not to create any charge over the suit land. However, in the preamble of the plaint the suit is filed for restitution of

mortgaged property and the word Act is mutilated.

It may not be out of place to mention here that cause of action has nothing to do with the defence which may be set up by the defendant, nor does

it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as cause of action, or, in

other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. It must be antecedent to the institution of the

suit and on the basis of that cause of action the suit must have been filed. For deciding whether the facts averred by the plaintiff would or would not

constitute cause of action, partly or wholly, the court must consider whether such facts constitute material, essential or integral part of cause of action.

If it is, it forms a cause of action, but if it is not, it does not form a cause of action. In determining the said question, the substance of the matter and

not the form thereof should be considered.

The plea of bar to jurisdiction of a civil court must be considered h aving regard to the contentions  raised  in the plaint. For the sa id purpose,

averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The Cou rt may not be justified in

determining the question, one way or the other, only having regard to the reliefs claimed de'hors the factual a verments made in the plaint. The rulesof

pleadings postulate that a plaint must contain material facts (Church of North India Vs. Lavajibhai AIR 2005 SC 2544). For the purpose of

 determination of question as to whether the suit is barred, the aver ments made in the plaint are germane.

In Smt. Bismillah Vs. Janeshwar Prasad and ors., reported as AIR 1990 SC 540, the Supreme Court has observed as under:

It is true that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit. However, In order to

determine the premise, the nature of action, the pleadings should be taken as a whole................The real point is not the stray or loose explanation

which abound in inartistically drafted plaint but the real substance of the case is gathered by construing the pleadings as a whole.

In case titled “Bhau Ram vs. Janak Singh & ors.â€, reported in 2012(6) SCALE 530, the Hon'ble Apex court, relying on various decisions of

the Supreme Court namely, C.Natarajan vs. Ashim Bai and another, (2007) 14 SCC 183, Ram Prakash Gupta vs. Rajiv Kumar Gupta and others,

(2007) 10 SCC 59, Hardesh Ores (P) Ltd. vs. Hede and Company, (2007) 5 SCC 614, Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel

M.V.Fortune Express and others, (2006) 3 SCC 100, Sopan Sukhdeo Sable and others vs. Assistant Charity Commissioner and others, (2004) 3 SCC

137, Saleem Bhai and others vs. State of Maharashtra and others, (2003) 1 SCC 557, once again reiterated the same view that for the rejection of

plaint, only the averments made in the plaint can be looked into. The relevant paragraph containing the observation is extracted hereunder:

The law has been settled by this Court in various decisions that while considering an application under Order VII Rule 11 CPC, the Court has to

examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant.

Learned counsel for the revision petitioners is unable to point out any illegality or material irregularity in the finding of learned Appellate Court.

Having an overall view of the matter, learned Appellant Court order is comprehensive, lucid and verbose and a well reasoned judgment and therefore,

need no interference. Hence the petition being meritless, as such, is dismissed. However, it is made clear that this Court has dealt with only subject

matter of jurisdiction in this petition and has neither discoursed the merits of the case nor dealt with the pecuniary or territorial jurisdiction of learned

Trial Court. Therefore, learned Trial Court shall deal with the matter in accordance with law.

The revision petition is, accordingly, dismissed as above.