AB RAHIM SHORU Vs. JAWAHIR LAL KOUL JALALI

JUDGEMENT

(1.) RESPONDENT No. 1 on the one hand had to migrate due to turmoil the valley is going through and on the other he is deprived of his proprietary rights by Naib Tehsildar Buchhwara by sheer stroke of his pen without hearing him, obviously, the old adage 'misfortunes never come alone is aptly attracted traceable to order of mutation dated 28 -06 -1992 passed against a dead person namely Pandit Prem Nath Jalali favoring another dead person namely Sidiq Bhat one of the beneficiaries of the mutation. Being aggrieved, the order came to be challenged before the Financial Commissioner which was resisted on the ground of being barred by limitation but the objection could not sustain, consequently turned down by order dated 13 -08 -2003. It is the said order which is impugned by medium of this writ petition contending that appeal has to abate, for, some of the tenants were dead on the date of institution of appeal. To bring home the point, the learned counsel for the petitioner has relied upon the judicial decisions, relevant paras thereof are extracted here under:

(2.) IN Bank of Commerce Ltd. Khulna versus Protap Chandras case the court has dealt with sufficiency of cause within the meaning of Limitation Act. State of West Bengal versus Manisha is a case where court has not only condoned the delay but has treated it to have been admitted even against legal heirs although they were not party. In United Commercial Bank verus Dharam Paul Singhs case, court has brought the legal representatives on record. In Mohammad Ibrahim versus Chellammall, the court has deviated from the procedure totally to avoid further delay in disposal of the lis. I dont find any direction towards abatement and none of these judgements lends any help to the contention of abatement. Much emphasis was laid by learned counsel for the petitioner on Ali Mohammad Khan versus Vijay Tulsi. Perusal of the mandate of the judgement makes it very clear that suit against a dead person is a nullity. In the case on hand prayer for effecting mutation was made by the petitioner against a dead person and the prayer was granted, resultantly mutation effected. Applying the principle, the very motion for mutation is uncalled for. Fact of the matter is that there is unanimity of opinion of the effect that procedure can be modified when ends of justice demand so. Examining the order of the Financial Commissioner on the touch stone of the judgements referred to above, condonation of delay was called for and no fault can be attributed to the Financial Commissioner who has proceeded in the direction of undoing an illegality which is recognized as the most appropriate course by the apex court even where the courts lack jurisdiction. In this behalf it will be relevant to refer to para 7 of Mohd. Swalleh v. IIIrd AddI. Dist. Judge, Meerut, AIR 1988 SC 94 which may be noticed:

(3.) I would now like to examine the matter from the angle of procedure the Naib Tehsildar was required to follow. In this behalf rule 14 of the J&K Agrarian Reforms Rules 1977 assumes significance which may be extracted: