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Judgment
This motion of revision which is aimed at revising the order dated 2281990 recorded by the learned Additional District Judge, Srinagar in Civil
Misc. Appeal No. 16 of 1987 titled as above arises out of those circumstances which are summarised as under :
The petitioners deceased father came to institute a suit for Declaration with a consequential relief of possession against State/defendant before the
court of learned District Judge, Srinagar as early as on 8101974, seeking therein relief of declaration to the effect that he has become owner of the
land in the form of an orchard (commonly known as Khaskash Bagh) measuring about 21 kanals and 2 marlas comprising of survey No. 1162
situated at Nowhatta Srinagar, the respondent/defendant State and its departments and officials be restrained by virtue of perpetual injunction to
interfere with his possession with respect of this land. It is inter alia maintained in the plaint that the plaintiff has become owner of the suit land by
virtue of adverse possession as the same being in his possession from the time of his forefathers from last more than seventy years; that the plaintiff
and his forefather have effected improvements in this land by planting fruit trees thereon, thereby, converting it into an orchard, raised a house there
where he has been living from the time of his forefathers; that the State defendant through the Development Authority is bent upon to dispossess
him from the suit land; that the defendant State by virtue of notice under S. 80 of the CPC were requested to concede to the claim of the plaintiff
with respect to this land which they have turned down. Alongside this suit the plaintiff came to file an application for the issuance of Ad Interim
injunction. This suit came to be transferred to the learned Judge Small Causes Court who with respect to this application on 7111974 came to
pass an order directing the parties to maintain status quo with respect to the suit land. This order however, came to be passed subject to
objections of the respondent/defendant. This order of status quo came to be vacated by the trial Court after hearing the parties by virtue of its
order dated 611975, which came to be challenged in appeal before the appellate Court and the Addl. District Judge to whom this appeal was
assigned who came to dismiss the same by virtue of its order dated 2891976. The plaintiff challenged this order of dismissal of appeal recorded by
the Learned Addl. District Judge, Srinagar before this court and this Court by virtue of an order dated 691978 came to set aside the orders of
both the appellate Court as well that of the trial Court with the direction to the trial Court to frame a preliminary issue in regard to possession of the
plaintiff/petitioner in the suit land on the date of the suit and that the parties shall be asked to produce their evidence with respect to this issue with
the further directions that in case issue is framed in favour of the petitioner, temporary injunction till final disposal of the suit be issued and in case
the issue is found against the petitioner, the order of status quo shall be vacated. Direction to this effect also came to be passed that till the
preliminary issue is decided the order of status quo issued by the Court remain in force. It appears that the trial Court pursuant to the direction of
this Court came to frame preliminary issue which reads Whether the plaintiff was in possession of the land in dispute on the date of the suit and is in
his possession"". It further appears that the parties produced their both oral and documentary evidence in support of their claims with respect to this
issue. The trial Court on appreciation of the evidence of the parties came to find the plaintiff the deceased father of the revisionists in possession of
land measuring about 6 kanals and 2 marlas comprising of Survey No. 1162 on portion of which his residential house and an orchard exists came
to issue temporary injunction by virtue of its order dated 1181987 restraining the defendant State to interfere with this land measuring about 6
kanals and 2 marlas in possession of the plaintiff till the final disposal of the suit. This order of trial Court came to be challenged before the 1st.
Appellate court. The Addl. District Judge to whom this appeal came to be assigned came to dismiss the appeal by virtue of his judgment dated
2281990. This order of the Addl. District Judge, is impugned in this appeal. It is maintained in this motion of revision that Abdul Gani the father of
the petitioners died during the pendency of the suit and appeal in question, in this behalf application for getting the revisionists on record have been
filed before the trial court and the same has been accepted and they substituted as plaintiffs.
The stand of Mr. Z. A. Qurashi the learned counsel for the petitioners revisionists is that the deceased father revisionists had engaged Mr. Mian
Abdul Qayoom Advocate as counsel in this case before the Addl. District Judge, Srinagar before whom the appeal was pending since 2161989,
the date of transfer of this appeal before Appellate Court and the appeal could not be argued, however, in the meanwhile the conditions
deteriorated in Srinagar and Shri Mian Abdul Qayoom the Advocate engaged in the case on behalf of the appellant was arrested and the case
could not be argued and it was difficult for the plaintiff the father of the revisionists to engage another lawyer for arguing the matter because the
record of the case maintained in the case (the brief) was with said Mr. Mian Abdul Qayoom. It is further submitted that with great difficulty the
deceased father of the revisionists succeeded in reconstructing the brief i.e., is the record of the case made a written request for arguments, which
came to be turned down by the court and came to decide the appeal in question without hearing the appellant/the deceased father of the
revisionists. Therefore, the judgment impugned has been recorded without hearing the appellant or his counsel. He has further contended that the
appellant being a lay man could not argue the appeal in absence of his counsel therefore, the impugned order is liable to be set aside. In this behalf
he has relied on AIR 1963 SC 146 paras 24 and 25.
On the other hand the stand of Mr. G. J. Balla, the learned counsel appearing on behalf of the respondent defendant is that the appellant was all
along present before the appellate Court but failed to produce his counsel before the court for arguing the appeal although positive directions in his
name came to be issued repeatedly by the Court to the effect to produce his counsel for arguing the appeal. Therefore, the appellant shall be
deemed to have been heard in this appeal in terms of O. 41 rule 30 CPC before the appellate Court. His further contention is that with respect to
the factum of possession of suit land, the trial court as well as the 1st Appellate Court have arrived to a concurrent findings that out of suit land the
deceased plaintiff was found in possession of only Six Kanals and 2 marlas, therefore, this Court by invoking its revisional jurisdiction cannot
dislodge these findings.
I have considered the rival contentions of the learned counsel for the parties and have also perused the record of the appellate Court. The only
question raised in this motion of revision is as to whether the appellate Court has committed a jurisdictional error or has acted with material
irregularity in not granting an opportunity to the deceased appellant the father of the revisionists to engage a counsel for arguing the appeal before
him as a result of which the judgment impugned is liable to be set aside. In this behalf the paras Nos. 24 and 25 of the Judgment of a case titled as
Sukhpal Singh v. Kalyan Singh reported as AIR 1963 SC 146 relied by the learned counsel for the petitioner are the observations of the Honble
Judge who has differed from the majority view that an appellate Court is not bound to decide an appeal on merits on the basis of material on the
record, when the appellant appears does not address the Court. It can dismiss the appeal for default. Therefore, these observations of the Honble
Judge who has differed majority view in the case supra does not help the learned counsel for the petitioners.
The perusal of the record reveals that the order of issuance of temporary injunction with respect to the land measuring 6 kanals and 7 marlas out
of the total suit land against the respondent/defendant came to be challenged before the learned District Judge, who came to assign it to the Second
Addl. District Judge, Srinagar, thereafter, this appeal file came to be transferred to the Court of Addl. District Judge, Srinagar, who on its receipt
on 2161989 came to adjourn to 871989 for arguments last chance. Despite this order of adjournment the arguments as last chance the appeal
could not be argued when 951990 one Abdul Hamid Advocate, the junior colleague of Mr. Mian Abdul Qayoom Advocate the appellants counsel
in the case expressed before the Court that when the appellant was present in the Court that his counsel Mr. Mian Abdul Qayoom has withdrawn
from the case as the counsel for the appellant as a result of which the learned court came to adjourn the case to 1661990 at the instance of the
appellant who sought an opportunity to engage an another counsel. On 1661990 on the written request of the appellant case came to be adjourned
to 1071990. On this date one Mohd. Shafi caused his appearance in the case and sought an opportunity for advancing his arguments on the
ground that he wants to up to date his brief. In the interests of fair justice learned court came to grant the adjournment when the appellant was
present in the Court and the case came to be adjourned to 181990. On this date the appellant came to file an application for grant of adjournment
in the case, which came to dispose of with the order that file be adjourned to 2281990 for judgment with a liberty to the appellant to submit his
written arguments during the intervening period in the chamber of the learned Presiding Officer of the Court. On 1861990, the appellant appears to
have filed an application through Mr. B. A. Bashir before the appellate Court stating therein that Mr. M. A. Qayoom Advocate, the learned
counsel of the appellant has been arrested and now he wants to engage Mr. B. A. Bashir, Advocate as his new counsel, therefore, the case be
adjourned. This application of the appellant came to be rejected by the learned Appellate Court by virtue of its order dated 2281990 existing in
the said application. All this goes to show that the appellant was never willing in arguing the appeal in question and has been dragging the same
from more than a year under one pretext or another despite the positive orders passed in this behalf by the appellate Court for hearing the
arguments. The stand of Mr. Qurashi that Mr. Abdul Qayoom, Advocate, the learned counsel engaged in the case by the appellant before the
appellate Court was arrested in the year 1990, as a result of which the arguments could not be advanced by his said counsel is factually incorrect,
because the interim order dated 951990 reveals that Abdul Hamid the junior colleague of Mr. M. A. Qayoom appeared in the case before the
learned Appellate Court when the said case was called on for hearing on the said date informed the Court in presence of the appellant that Mr.
Mian Abdul Qayoom has withdrawn as counsel for the appellant in this case. Therefore, it is manifest from the record that it is appellant who used
to be present before the Court in the case when called on for hearings but unwilling to argue it and his prayer either oral or written for adjournment
were never bona fide. In such circumstances, it was within the jurisdiction of the appellate Court to decide the appeal. Moreover granting of an
adjournment is in the discretion of the Court. In this behalf it is profitable to make reference of the Apex Court Judgment Supra where their
Lordships Honble Mr. Justice J. K. Kapur, K. C. Das Gupta and Raghubar Dayal have in para No. 17 of the judgment observed that :
......Another point urged for the appellant is that the High Court should not have rejected the appellants application for adjournment of the case on
January 4, 1955 It is a matter within the discretion of the Court to allow an adjournment......
Since the appellant as is manifest from the appeal file was all along present before the appellate Court failed to produce a counsel on his behalf
to argue the appeal when the case appears to have been adjourned from time to time for more than a year and spread to as many as fourteen dates
of hearings, therefore, he shall be deemed to have been heard in the appeal is contemplated under O 30 R. 41 CPC. In this behalf reference is
made to Division Bench of this Court in a case Ghulam Qadir v. Sikhander, reported in AIR 1981 J and K 30 in which para No. 11 of the
Judgment it is observed that :
Clearly, therefore, it was not a case where no one was present on behalf of the appellant. On the other hand, it was a case where the appellant
was present but was unwilling to argue the case and his prayer for adjournment was found not to be bona fide. In such a case, there can be no
manner of doubt, that the appellant may be deemed to have been heard within the meaning of rule 30.....
Viewed thus, the impugned order does not suffer with any jurisdictional error and has been passed with any material irregularity. Moreover in
this appeal concurrent findings of the fact of possession recorded by the trial Court and confirmed by the appellate Court which are not perverse
has been assailed, therefore, I refrain to interfere with it.
Therefore, the motion of revision fails and the same is dismissed. Record of the case be returned to the trial Court forthwith together with the
copy of this judgment where the learned counsel for the parties are directed to cause the appearance of their clients on 1652002. The trial Court
shall expedite the trial of the case.
Revision dismissed.