KOTWAL MADHOLAL Vs. AB RASHID

JUDGEMENT

(1.) THIS is an appeal against an order dated April 11, 1972, of the learned District Judge, Bhadarwah, dismissing as incompetent the appeal preferred by the plaintiff -appellant against the judgment dated July 19, 1972, of the Sub Judge, Bhadarwah, passed in a suit for accounts instituted under the Agriculturistsâ„¢ Relief Act, 1983 (1926 A. D.)

(2.) AFTER hearing the learned counsel for the parties at Considerable length, we are of the opinion that this appeal must succeed.

(3.) ALTHOUGH Section 5 of the Agriculturistsâ„¢ Relief Act was struck down by a Division Bench of this court in Haji Ahmad Bhat Versus Shaban Ganai, 1969 K. L. J. 221, as unconstitutional and void on the ground that it offended Articles 13 and 14 of the Constitution, no adverse observation regarding the other provisions of the Act were made therein. On the contrary, it was specifically observed in that case that the provisions of Section 5 were severable from the main Act. The effect of this striking down of Section 5 of the Act was that it became non est, wholly ineffectual, and destitute of any legal effect. In the absence of Section 5, let us see if the appellant had a right of appeal under any other provision of law in force at the commencement of the list. It would be useful in this connection to refer to Section 18 of the Agriculturistsâ„¢ Relief Act which provides : "Except in so far as these are inconsistent with this Act, the provisions of the Code of Civil Procedure, and the Jammu and Kashmir State Civil Courts Act, 1977, shall apply in all suits and proceedings before the court under this Act. The Court exercising jurisdiction under Section 4 shall for the purposes of the said Code, and the said Act be deemed inferior to the District Court." A plain reading of S. 18 of Agriculturistsâ„¢ Relief Act would show that the provisions of the Code of Civil Procedure and the Jammu and Kashmir State Civil Courts Act. 1977 (1920 A. D.) in so far as they are not inconsistent with the Agriculturistsâ„¢ Relief Act, have been made applicable to suits and proceedings under the Act i.e. the Agriculturistsâ„¢ Relief Act. Now as the provisions of the Civil Procedure Code and the State Civil Courts Act relating to appeals are not inconsistent with the provisions of the Agriculturistsâ„¢ Relief Act, we have no hesitation in observing that the right of appeal in the present case would be governed by Section 96 of the Code of Civil Procedure and Section 34 of the State Civil Courts Act.