Madan Lal Sahani and Others vs Satpal Sahani and Others

S.N. Jha, C.J.—These two civil revisions involve common question and, as such, they have been heard together and are disposed of by this

common order.

The question which arises for decision is whether proceedings in the suits instituted by the respondents are to be stayed in terms of the Jammu

and Kashmir Migrants (Stay of Proceedings) Act, 1997, The petitioners who are defendants in the court below filed application for stay of

proceedings which was rejected by the impugned order. The suits were filed seeking eviction of the petitioners from the suit premises. It is not in

dispute, having regard to the definition of 'immovable property' in Section 2(b) of the Act that eviction suits between landlord and tenant are

otherwise covered by the Act.

The relevant provision which is contained in Section 3 of the Act runs as under:

Stay of proceedings against Migrants.-Notwithstanding anything to the contrary contained in any law for the time being in force, all proceedings

pending or hereinafter filed against a migrant for recovery of loan raised in the Kashmir Division or relating to immovable property situated in the

Kashmir Division shall remain stayed from the commencement of this Act till the Government notifies otherwise.

Provided that nothing in this section shall apply to a dispute relating to recovery of money or immovable property inter-se migrants.

The definition of 'migrant' in Section 2(c) of the Act may also be noticed as under :

Migrant"" means any person who has migrated from the Kashmir Valley after Ist. November, 1989 and is registered as such with the Relief

Commissioner and includes a person who has not been so registered on the ground of his being in service of the Government in any moving office,

or having left the Valley in pursuit of his occupation or vocation and is possessed of immovable property in the Valley but is unable to ordinarily

reside there due to the disturbed conditions.

The case of the petitioners is that they migrated from the Kashmir valley in the wake of turmoil after 1st. November 1989, were registered as

such with the Relief Commissioner at Jammu, as admitted by the plaintiffs-respondents in their objections field in reply to the petitioners' application

for additional evidence. Being migrants, the proceedings cannot be continued against them in view of the mandatory provisions of Section 3 of the

Act. According to the respondents the petitioners had migrated in the wake of turmoil and so had the respondents. In terms to proviso to Section

3, where dispute is between migrants inter se, the provision relating to stay of proceedings is not applicable. In any view, the petitioners having

returned to the village, their migrant status, if any, came to an end and they are not entitled to seek stay of proceedings.

On behalf of the petitioners, it was submitted that the respondents having admitted the migrant status of the petitioners in their objections to the

petitioners' application for additional evidence, they can not turn around and take any plea to the contrary. It was submitted that the Act does not

provide for cessation of migrant status of the person and thus if he falls within the ambit of Section 2(c) of the Act, he must be treated as migrant

and no proceeding by way of suit, appeal etc. can be initiated or continued against him.

Mr. G.A. Lone appearing for the petitioners placed heavy reliance on the said statements in para 5 of the respondents' objections to the

petitioners' application for additional evidence, which according to him, contains a clear admission of the petitioners' migrant status. The statement

in para 5 of the objections were made in response to the petitioner' averments in para 5 of the application (for additional evidence) and, therefore,

it would be appropriate to first notice petitioners' statements in para 5 of the application (for additional evidence):

That during the course of enquiry, it has come in evidence that plaintiffs, namely Inder Paul and Ved Paul have migrated from Srinagar alongwith

their families, lock, stock and barrel. These plaintiffs have been initially receiving benefits from Relief Commissioner in the capacity of migrants, but

with the passage of time they have permanently settled at Jammu. The plaintiffs have their two residential houses in Jammu, one house situate at

Kathi Talab and other at Trikuta Nagar.

In reply, the respondents stated vide para 5 of the objections as under:-

In reply to para 5, it is submitted that defendants have deliberately suppressed the facts and tried to mislead this Hon'ble Court. The defendants in

both the suits have migrated like plaintiffs Ved Pal and Inder Pal have been registered as migrants with Relief Commissioner where from the

defendants have been regularly receiving the relief. One fails to understand how defendants have been on the one hand claiming that they are

running their business in the suit shops and on the other hand they have been claiming relief before Relief Commissioner at Jammu on the plea that

they are not safe at Srinagar to conduct their business. Copies of the documents wherein the defendants in both the suits have been registered as

migrants are enclosed herewith. It is submitted that Shri Ved Pal and Sh. Inder Pal after having left the Valley in turmoil have for lack of resources

been registered as migrants. But it is denied that either of them have permanently settled at Jammu. Plaintiffs have failed to understand on what

basis and from which sources the defendants have stated that Sh. Inder Paul and Ved Paul have residential house at Trikuta Nagar and Khati

Talab, Jammu. Ancestral house at Khati Talab is in possession of eldest brother of the plaintiff namely Ram Pal who is not a party of the

proceedings and moreover having ancestral house at Jammu have no relevance as far as the present eviction suits are concerned and none of the

plaintiffs either have or had any house at Trikuta Nagar Jammu which is only figment of imagination of the defendants having been put up only to

delay the proceedings.

It would appear that the thrust of the petitioners' statements in para 5 of the application was that the respondents had migrated from Srignagar

along with their families and had settled at Jammu. It is relevant to mention here that the respondents seek eviction of the petitioners on the ground

of personal necessity and these statements in para 5 of the application were apparently made to negative the respondents' case of personal

necessity. Clearly, if the respondents had left Srinagar and settled at Jammu, they do not need the premises for their own occupation, but if that is

so, they too acquired the status of migrants attracting the proviso to Section 3 which makes the provision regarding stay of proceedings

inapplicable as between the migrants inter-se. Thus if respondents admitted the migrants status of the petitioners, as contended on their behalf, the

petitioners too admitted the respondents' migrant status. It was in the context of the petitioners' case as set out in paragraph 5 of the application for

additional evidence that the averments were made in para 5 of the objections. In the said paragraph, nodoubt, the respondents stated about the

petitioners' registration as migrants. However, this statement too appears to have been made in the particular context, so that they could seek

petitioners' eviction from the suit premises. If the plaintiffs can not seek defendant's eviction on the ground of personal necessity because they have

settled elsewhere, as contended by the defendant, surely, by the same logic, the defendant also can not resist the decree of eviction, if they have

settled elsewhere. As a matter of fact, if I may say so, if the petitioners in the instant case had really migrated, and not returned to the valley

thereafter, it is not understandable as to why else they are contesting the respondent's claim for eviction.

I am not inclined to accept the case of the petitioners that the status of a person as migrant would remain as such notwithstanding the subsequent

events. The Act is no doubt silent on the point. But granting an ad-infinitum status as migrant to a person would not be in consonance with the

object of the Act. The object clearly is to protect the interest of migrants' who are in no position to contest the suit etc. brought against them on

account of their forced absence from the valley. Those who return to the valley would not be entitled to such protection any longer. Any other

interpretation may cause injustice to the suitor as he may be deprived of the enforcement of his rights for all times to come. It is to be kept in mind

that the declaration of one's migrant status is not by the statute but under the statute. It is a question of fact which is to be determined by the court

on the basis of evidence as and when such status is claimed or question arises. The court can also declare that the person has lost his migrant

status.

Mr. Bashir A. Bashir appearing on behalf of the respondents referred to the evidence of the witnesses and submitted that the evidence of

defendants' witnesses, in fact, no less than the defendants themselves in their respective suits on 30-5-1988, suggests that they are doing business

in the suit premises; they daily go to temple which is 6 minutes walk from the shop premises. Defendant Pran Nath in fact stated that he had taken

another shop near the temple on rental of Rs. 1000/- per month. According to the counsel, the evidence clearly shows that the defendants after

migrating from the valley when turmoil broke out in November 1989, later returned and started living there, doing business. That is why the

migration certificate of some of them was cancelled. If that is so, they lost their migrant status and can no longer claim stay of proceedings.

What stares more prominently at the petitioners' case is their active participation in the suits. It was stated by Mr. Bashir that after the plaintiffs'

examined their witnesses between 17-5-1993 and 18-9-1997, the respondents started examining their witnesses from 30-5-1998 and as up to

22-7-2000 they examined as many as 14 witnesses. When the suit was in the final stage, they filed application for additional evidence and upon its

rejection by the court below, came to this court in civil revision No. 54/2003. In the said application for additional evidence filed on 5-8-2002, for

the first time they sought to invoke the provisions of Section 3 of the Act. This Court while upholding the order by which request for leading

additional evidence was turned down, gave liberty to invoke Section 3 of the Act; that is how they filed the application giving rise to these

revisions.

The submissions of Mr. Lone was that petitioner's participation in the suit can not constitute estoppel, more so, in view of the respondents'

admission in para 5 of their objections (supra). Reliance was placed on His Holiness Digya Darshan Rajendra Ram Doss Vs. Devendra Doss, and

Phula Singh v. Gram Panchayat, Sharon. AIR 1982 Punjab 204. (These decisions are on different point) It was submitted that even if petitioners

participated, it would not confer jurisdiction on the Court. In reply, Mr. Bashir placed reliance on Basheshar Nath Vs. The Commissioner of

Income Tax, Delhi and Rajasthan and Another, , and Bibi Amna Khatun and Others Vs. Zahir Hussain and Another, , and submitted that by

participating in the proceedings, petitioners waived their right to seek stay of proceedings.

In my opinion, the issue lies in a narrow compass. Section 3 of the Act provides for dis-continuance of the proceedings. It does not effect or

denude the jurisdiction of the court to try the suit etc. The court otherwise has jurisdiction to try the case. In other words, it is not case of inherent

lack of jurisdiction. If it were a case of inherent lack of jurisdiction, certainly, no amount of participation by a party would confer jurisdiction on the

court, But the position would not be the same where the party knowingly, in derogation of his rights subjects itself the jurisdiction and participates

in the proceeding. It is to be kept in mind that Section 3 of the Act does not contemplate automatic cessation of proceedings. The proceedings are

to be stayed only on application of the party i.e. the defendant. If such application is not made and the suit is allowed to proceed, it may continue

upto the final stage and decree is passed, can the defendant take the plea that the decree is illegal for want of jurisdiction ? The answer must be in

the negative. That being the position, the fact that the petitioners participated in the proceedings all these years raises a question as to whether they

waived their right or the application for stay was bona fide at all. Section 3 does not make distinction between application made bona fide or

otherwise, but certainly, an active and conscious participation may estop the party from seeking stay of the proceedings on the principle of waiver

and acquiescence. The accepted connotation of 'waiver' is that to constitute waiver, there must be an intentional relinquishment of a known right or

privilege or the voluntary relinquishment or abandonment an existing legal right and a conduct which warrants an inference of the relinquishment of a

known right or privilege. Vide Bisheshwar Nath v. Commissioner of Income Tax (supra).

It is to be kept in mind that the Act came into force and effect from 2-6-1997 and defendants started examining their witnesses from 13-5-

1998 and examined as many as 14 of them before the present dispute arose . In a sense, it is no wonder that such application came to be filed at a

late stage. Tenants in occupation of suit premises are known for making attempts to somehow stall the proceedings in eviction suits on one ground

or the other. It was stated by Mr. Bashir that seeds have been sown for another round of dispute by seeking addition of the State as a party-

defendant on the ground that the suit property is a Nazool property -another attempt to get the suits stalled. The suits were laid 18 years ago in

1986. No-doubt, the conditions prevailing in the valley also attributed to delay in disposal of the suits. The proceedings, however, appear to have

gained momentum in 1993 or thereafter when respondents started examining their witnesses. As rightly observed by the court below, Section 3 of

the Act is designed to be used as a 'shield' and should not be allowed to be used as a 'weapon' to stall the suits, appeals etc.

In the above premises, the rejection of the prayer for stay of proceedings can not be said to be illegal or unjustified to warrant interference in

civil revision.

16 The revision petitions are accordingly dismissed, but without any order as to costs.