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Judgment
J.P. Singh, Judge
One Sain Dass, the predecessor-in-interest of the respondents filed a suit for possession of land measuring 18 kanals 2 marlas comprised in
Survey No. 150/7 of Khewat No.38/135 situated at Shankerpora Tehsil Chadoora District Budgam, which, ignoring his right of pre- emption, had
been sold by one Om Prakash to Mohd. Shafi. Suit for pre-emption filed in the Court of Additional Munsiff, Srinagar to vindicate his right of pre-
emption was decreed on 29th of Magh 2000 Bikrimi. Possession of this land was delivered to Sain Das by Collector, Srinagar (Kashmir) in
execution of the decree on 1st of Poh 2000 Bikrimi.
Another chunk of land measuring 16 kanals falling under Survey No. 149/7, adjacent to this land had been purchased by the defendant. While the
matter was pending consideration in the Revenue Courts in regard to disputed entries regarding the land, Gurpurab Singh, the husband of the
petitioners, took forcible possession of the land giving rise to the filing of the suit which was contested by Gurpurab Singh setting up the defence
that although the pre-emption decree had been obtained by the plaintiff, Sain Das, he in fact was the 'benamidar' of the said land because he had
paid consideration amount and spent money on litigation. Proceeding on the said premise, Gurpurab Singh claimed that he had been in continuous
possession of the suit land and was its real owner. The suit land had been converted into an Orchard and he had been enjoying usufruct thereof.
Gurpurab Singh died during the pendency of the suit. His legal representatives were brought on record. The suit, after a full dressed trial, was
decreed in favour of Sain Dass, plaintiff on 25.4.1980.
The petitioners, appealed against the decree before District Judge, Budgam. Their appeal was registered as Appeal No. 28/1981. The 1st
appellate court, vide its order dated 31st of March 1983 framed two additional issues, and remitting the matter to the trial court, directed it to
return its finding on these issues to the appellate court within a period of three months. The appeal was directed to be taken up for hearing after the
receipt of findings from the trial court. This order of the First Appellate Court was questioned by Sain Dass in this Court in civil revision No.
62/1983. Sain Dass, died during the pendency of this civil revision which was consequently dismissed in default of appearance on 16.10.2001.
During the pendency of revision petition in this Court, the trial Court passed an order on 16.11.1985 dismissing the suit in default of appearance.
The respondents filed an application in this court seeking restoration of civil revision petition No. 62/1983. This application was disposed of by
this court vide its order dated 9.10.2003.
It was after the passing of this order by this Court that an application was filed by the respondents before District Judge Budgam seeking
abatement of the appeal, confirmation of decree and judgment dated 25-04-1980 of Munsiff Chadura and setting aside the dismissal order passed
by the trial court on 16-11-1985.
Learned District Judge, Budgam, declared the appeal to have abated because of petitioner's failure to bring legal representatives of Sain Dass
on record within the prescribed period of limitation. Additionally, he set-aside order dated 16.11.1985 of Munsiff, Chadoora dismissing suit No.
103 of 10.05.1968 in default of appearance besides declaring judgment and decree of Munsiff, Chadoora dated 25.4.1980 to have become final
and absolute.
It is this order of learned Principal District Judge, Budgam, which has been questioned by the petitioners, who are the widows of late Gurpurab
Singh in this civil revision petition.
Mr. M. H. Attar, learned counsel for the petitioner submitted that the 1st Appellate Court had erred in holding petitioner's appeal to have
abated, upsetting order dated 16.11.1985 of Munsiff, Chadura and holding decree dated 25.4.1980 to be final and absolute. According to the
learned counsel, the order dismissing suit in default of appearance, having not been questioned by the respondents in appropriate proceedings,
could not be set-aside by the 1st appellate court as no appeal against that order was pending before the learned District Judge. He submits that the
learned District Judge had no jurisdiction to declare as to whether or not decree dated 25-04-1980 of Munsiff Chadura was final and absolute.
Reliance is placed by the learned Counsel on Madan Naik (Dead) by Legal Representatives and Others Vs. Hansubala Devi and Others, .
Mr. G. A. Lone, learned counsel for respondents, relying upon Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Others, ,
Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., , urged that order of Munsiff, Chadoora dated 16.11.1985 dismissing
respondents' suit in default of appearance was without jurisdiction because it had been passed by CORAM NON JUDICE and hence non-est.
Learned District Judge, according to the learned counsel, had the jurisdiction to declare it as non-est because petitioner's reliance on this order was
required to be dealt with by the learned District Judge before considering respondents plea of abatement of appeal. Reliance is placed on the
provisions of Order XLI and Order XXII of the Code of Civil Procedure.
I have considered the submissions of learned counsel for the parties and gone through the records.
Before dealing with the submissions of learned counsel for the parties, reference to relevant portion of order dated 31st of March 1983 of
District Judge, Budgam, order dated 16.11.1985 of Munsiff, Chadoora, order dated 9.10.2003 of this Court, besides the provisions of Order
XLI Rule 25 of the Code of Civil Procedure, may be necessary. These read thus:
Order dated 31st of March 1983 of District Judge, Budgam:
So, I think that the pecuniary jurisdiction is a must to be determined in this suit which would not only decide the forum of regarding the decision on
the other issues which have been struck in the trial, but also the forum of appeal. So I need not at this stage give my finding case, but would like to
keep the appeal pending for decision and in the meantime remit the case back to the Court of Munsiff, Chadura, who will give his finding regarding
the following issues and remit back the findings within a period of three months and when the finding on the issues is received from the court below,
the appeal be put up for hearing. Till then the appeal file be sent to records:
i) Whether the house is standing on the suit land prior to the institution of the suit, as such, the plaintiff has to pay the court fee on the market value
for possession? OPD.
ii) Whether the market value of the suit land including the house is between Rs. 70,000/- to Rs. 20,000/-. As such is not within the pecuniary
jurisdiction of the Munsiff's Court Chadura? OPD. The parties will cause either appearance in the court below on 15.4.1983.
Order dated 16.11.1985 (English rendering) reads thus:
16.8.1985. Defendant's advocate present. Plaintiff and his representative absent. Court time is about to be over. Despite this nobody has
appeared on behalf of the plaintiff. On the last date too nobody was present on behalf of the plaintiff which indicates that plaintiff does not have any
interest to prosecute the case. The suit, as such, is dismissed in default of appearance of plaintiff which shall be consigned to records.
Announced: Sd/-.Judge
Order dated 9.10.2003 in Restoration Application No. 3/2003 reads thus:
Rest. No. 03/2003
Sain Dass Alias S. Charan Singh and ors v. Smt. Soshil Kour and anr. Mr. G. A. Lone.
Mr. M. H. Attar,
Application has been submitted seeking direction to set-aside the order of dismissal of revision petition dated 16.10.2001. In objections the stand
taken by the respondents, is that the application is not maintainable, on the ground that the persons who filed the application for restoration of the
revision petition, were not parties in civil Revision No. 163/83. During the pendency of revision petition, their father Sain Dass had died and by
operation of the statute the revision petition had abated for want of substitution. It is also submitted that the main suit out of which the revision
petitioner has arisen, has also been dismissed vide order dated 6.11.85 by Munsiff Chadura. On these submissions, it is prayed, that the present
application be dismissed. Heard learned counsel for the parties. In view of the fact that the main suit has already been dismissed in default on
16.11.85 and the revision petition having abated because of non substitution of the deceased Sain Dass, the present application is mis-conceived
and accordingly rejected. However, nothing said herein prevents the petitioners from pursuing legal remedies available under law.
Srinagar
9.10.03
Sd/- Hon'ble Judge
Provisions of Order XL1 Rule 25 of the CPC read thus:
Order XLI: Rule 25. Where appellate court may frame issues and refer them for trial to Court whose decree appealed from.
Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which
appears to the Appellate court essential to the right decision of the suit upon the merits, the appellate court may, if necessary, frame issues, and
refer the same for trial to the court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional
evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings
thereon and the reasons therefore within such time as may be fixed by the Appellate Court or extend by it from time to time.
Expression ""shall return the evidence to the Appellate Court together with its finding thereon and the reasons therefore"" appearing in Order XLI
Rule 25 of the CPC leaves no manner of doubt that when an Appellate Court remits a case to the trial Court for its findings on some issue/s in
terms of Order XLI Rule 25 of the Code, the case remains on the file of the Appellate Court and all that the trial court is required to do is to act in
accordance with the directions of the appellate court to record evidence on the remitted issues, return its findings thereon and send the findings
back to the appeal court which was in seisin of the whole matter, including the suit. The trial court, while dealing with the remitted matter, therefore,
does not possess any jurisdiction or power under Order IX Rule 8 of the CPC to dismiss the suit in default of appearance. Order dated 16-11-
1985 of Munsiff Chadura when the appeal was pending before Principal District Judge Budgam and the matter had been remitted to the Munsiff
only for the purpose of recording finding on the two issues, was thus an order by Coram Non Judice and hence null and void. Such an order would
be non-est. This order would not thus be used by any party to the litigation to seek its execution or to project it by way of defence. In nutshell, this
order could be avoided. Such an order would not require any adjudication as such to get it declared as void. I am supported in taking this view by
Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Others, , where the Hon'ble Supreme Court of India, held as follows:
It is settled law that a decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree made which
goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. its
invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in
collateral proceedings. The defect of jurisdiction strikes at the Manzoor Ahmad very authority of the court to pass decree which cannot be cured
by consent or waiver of the party.
And by Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., , where Hon'ble Supreme Court of India held as follows:
Even though the decree was passed and the question of jurisdiction of the court was gone into at the ex parte trial, the decree thereunder was a
nullity and did not bind the appellant. Therefore, it would not operate as a res judicata. A decree passed by a court without jurisdiction over the
subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A
decree passed by such a court is a nullity and is non-est.
I, therefore, do not find merit in the submission of Mr. Attar that non-assailing of order of Munsiff, Chadura would stop the respondents to
question its validity while seeking order of abatement of the appeal. This submission is, accordingly, rejected.
Learned counsel for the parties, were not at variance during the course of hearing of this petition, that no specific order for abatement of
proceedings under one or the other provisions of Order XXII of the CPC was envisaged and that the abatement takes place on its own force by
passage of time and that a specific order was necessary under order XXII Rule 9 CPC, only for setting aside abatement. There was no dispute
that a formal order of abatement could be passed by the Appellate Court. The only dispute between the parties was whether District Judge could
pass a declaratory order declaring decree dated 25.4.1980 final and absolute.
Although the order passed by District Judge, Budgam only re-iterates the legal position which would have followed because of the abatement
of appeal, yet the discussion held by learned District Judge, in the matter was unwarranted. He should have left the parties free to take their rival
stands as and when the decree would have been put into execution by the decree-holder. This is so because once the District Judge had held the
appeal to have abated, he had ceased to possess any jurisdiction in the matter to comment on those issues which he was not seized of. The order
of District Judge, Budgam, holding that decree had become final and absolute was thus unwarranted and un- necessary. Learned District Judge
was, however, right in saying that order passed by learned Munsiff, Chadura was without jurisdiction and non-est because in order to pass a
formal order of abatement of appeal, he had the jurisdiction to say that Munisff, Chadura did not possess the jurisdiction to pass the order of
dismissal of suit in default of appearance when the First appellate Court was seized of the appeal which included the suit because the order of
Munsiff Chadura dismissing suit in default of appearance had been put up as a defence to the application of the respondents seeking abatement of
the appeal. I therefore, do not find the District Judge to have gone wrong in declaring the order of dismissal of suit in default of appearance passed
by learned Munsiff Chadura as Non-est.
For all what has been said above I would uphold the impugned order of learned Principal District Judge Budgam barring that portion of the
order whereby he declares decree dated 25-04-1980 of the trial court final and absolute, which portion of the order shall stand annulled as
unnecessary.