UMAR JOO AHAD JOO (FIRM) Vs. KHALIQ WAGEY

JUDGEMENT

(1.) IN a suit for the recovery of money brought under the Agriculturists Relief Act (hereinafter called the Act) a decree was passed by the trial court of Sub Judge Shopian in favour of the appellant. On appeal by the defendant the District Judge Anantnag set aside the judgment and decree on the ground that there was no valid presentation of the plaint before the trial court after the defendant was declared an agriculturist by the said court. The District Judge observed that the suit was originally instituted on the regular civil side, but as the defendant was declared to be an agriculturist and the suit was held triable under the Act, the court ought to have returned the plaint to the plaintiff for presenting it again to the court notwithstanding the fact that the trial court exercised powers both as regular and Special court. The appellate court further held that the procedure adopted by the trial court in proceeding with the trial of the suit without returning the plaint to the plaintiff vitiated the judgment and decree of the trial court. This view was based on the authority of a Full Bench judgment of this court (Civil revision petition No. 1 of 2010, Dina Nath V. Shivjee Bhagati). Aggrieved by this appellate order the plaintiff came in further appeal before this court. The appeal was originally heard singly by me and the argument underlying the judgment of the Full Bench was reiterated on behalf of the defendant. The judgment of the first appellate court was sought to be upheld on the authority of the aforesaid Full Bench judgment. It was felt that the view expressed in the Full Bench case (Supra) needed reconsideration especially in the light of the facts of the present case. Accordingly the matter was placed before His Lordship, the Honble Chief Justice who was pleased to constitute the present Full Bench for this purpose.

(2.) THE question that has been referred to the Full Bench is whether the trial court which passed the decree in the case has committed a legal error in not returning the plaint to the plaintiff after it found the defendant an agriculturist and the suit triable under the Agriculturists Relief Act and whether the procedure adopted by the trial court in not returning the plaint to the plaintiff vitiated all the subsequent proceedings taken in the case including the judgment and decree passed by it when the same court exercised powers both on regular as well as on the Agricultural side.

(3.) IN order to appreciate the facts of the present case it is appropriate to refer to the minutes of the proceedings of the trial court and also to the history of the case. The suit was originally instituted by the plaintiff in the court of the Sub Judge Shopian on regular side on 10 -10 -1958. An objection was taken by the defendant that he was an agriculturist and therefore the suit was triable under the Agriculturists Relief Act. The trial court disposed of this issue by its order dated 27 -10 -1961. It held the defendant an agriculturist and observed that the suit would be tried on the agricultural side. Consequently the suit was struck off from the register relating to regular suits and was entered in the Relief Register, and a new index was prepared showing fresh institution on 10 -1 -1961. The case was thereafter tried under the Act. No objection was taken at that time or after that by the defendant that the plaint ought to have been returned to the plaintiff for presenting it again to the same court exercising jurisdiction on relief side under the Act. Statements of the parties were recorded, witnesses examined by the court on either side and arguments heard. The case was fought on merits for a period spreading over eight years, and thereafter a decree as provided under the Act was passed in the case. On appeal by the defendant, an objection was taken that failure on the part of the trial court to have returned the plaint to the plaintiff vitiated all the subsequent proceedings taken in the case as also the judgment and decree passed by it. This argument prevailed with the appellate court. Accordingly the decree was set aside and return of the plaint was ordered to the plaintiff as mentioned above.