SONA KHAN Vs. AMMA KHAN

JUDGEMENT

(1.) THIS revision arises out of a suit for permanent injunction which has been stayed by the trial court of Munsiff Pulwama by its order dated 28 -4 -1975 on the ground that it was hit by the Agrarian Reforms Act, 1972, being a suit which was instituted before and was pending on the appointed date viz 1 -5 -1973, the date on which the operative provisions of the Act came into force. Aggrieved by the order the plaintiff has come up in revision to this court.

(2.) DEALING with the question as to how the pending actions were affected by the New Act, this court in Rahim and others V. Amma Dar and others (AIR 1975 J&K 33) held as under : - "In the new Act and the rules thereunder applying to the pending actions, the resultant effect is that a pending action will continue or collapse according as it survives or not the new Act and the rules made thereunder. That will generally depend on the facts and circumstances of each case, the relief claimed therein; and, the particular provision of the new Act and the rules thereunder having bearing on it. Broadly speaking, a pending action will survive if, by or under the new Act, the right be not acquired; and, even if not so acquired, it be not lost or destroyed either; and, the remedy too be not barred or changed, it will not survive if, in consequence of the new Act, the right be acquired, lost or destroyed and even if not so acquired lost or destroyed, the remedy be barred or changed." The court also held: "If a question is raised before any civil court or officer or authority whether or not a particular land has vested in the State or in any other person under the new Act, such court or officer or authority shall not have power and jurisdiction to decide this question or even determine the collateral facts on which the decision of that question rests. Where, therefore, any such question is raised in a pending action or an action instituted after the Act became operative, the court or the officer or authority before whom such question is raised should appropriately stay its hands in the matter pending determination of that question by the competent authority under the new Act."

(3.) ON this principle the present suit could continue if, in consequence of the new Act and the rules made thereunder, the right claimed by the plaintiff was not lost or destroyed and the remedy too was not barred or changed. While considering this question if the point arose whether the disputed land continued to vest in the plaintiff or had vested in the State or in any other person, the court was under an obligation to stay the suit pending determination of that question by the competent authority under the new Act. Here too the court was required to consider the effect that the Jammu and Kashmir Agrarian Reforms (Suspension of operation) Act, 1975 which came into force on 25th March, 1975 after the full bench judgment was delivered, had on the matter. All these questions could obviously be determined by the trial court easily if the party interested had raised the necessary pleas or objections in appropriate manner. What actually happened in the present case was that the defendant made a vague application that the suit was hit by the Agrarian Reforms Act and should therefore be stayed. On this application the trial court assumed that the case involved the question whether or not the disputed land had vested in the State and held that it was liable to be stayed pending determination of that question by the competent authority under the Agrarian Reforms Act. Manifestly it was improper for the defendant to have filed such a vague application and equally improper for the trial court to have assumed things. More appropriately the court should have asked the defendant to file a fresh application giving better particulars of his claim for stay of the proceedings, called upon the plaintiff to file his objections and then only it should have passed appropriate orders in the matter, in particulars, the order staying the proceedings if, consistently with the principle stated above, the exigencies of the case so demanded. This is what the trial court has not done. It has adopted an approach which is wholly erroneous. In this view the impugned order is not sustainable and must be set aside.