PRITHVI NATH KAUL Vs. MUNICIPAL COUNCIL

JUDGEMENT

(1.) WHETHER or not, Sub -section (6) of Sec. 229 of the Jammu and Kashmir Municipal Act, 2008 (hereinafter the Act) is retrospective in its operation, is the short question which falls for determination in this revision petition. Previously, there was no such provision in Sec. 229 and Sub section (6) was added to it for the first time by virtue of Amending Act No: XIX of 1976. The newly added Sub -section (5)reads as under: - - - - "(6) No Court shall have jurisdiction to entertain any application, suit or proceedings in respect of any order or action made or taken under sub -section (1) of Section 225 or section 226 or this section. The trial court being of the view that Sub -section (6) which merely determine the choice of forum related to a procedural right, held the provision to be retrospective in its application and dismissed the petitioners suit, which he had brought on 28 -12 -1973 i. e. much earlier to the coming into force of the Amending Act. The petitioner in the aforesaid suit had challenged the right of the respondent to take recourse to Section 229 of the Act for dismantling the construction which, according to him, he had raised in the year 1964. Mr. Nanda raised a preliminary objection in regard to the maintainability of the revision petition. According to the learned council the order sought to be revised was a decree within the meaning of Sec. 2 C. P. C. and, therefore, appealable in as much as, the plaint ought to have been deemed rejected under Order 7 Rule II (d) C. P. C. The objection raised by Mr. Nanda in my opinion is not well founded. Clause (d) of Rule 11 no doubt authorises the court to reject a plaint where the suit appears from the statement contained in it to be barred by any law but recourse to Rule II can be had only at a preliminary stage, and in no case after the issues have been settled and the suit is being tried on merits. Unlike Rule 10, which empowers the court to return the plaint for presentation to proper court "at any stage of the suit". Rule 11 does not speak of rejecting the plaint" at any stage of the suit". The, moment a suit is brought in a court, it is its duty to see among other things whether it is barred by any law, as might appear from the averments contained in the plaint. This the court is required to do before admitting the plaint under Order 7 Rule 9. After the plaint is admitted process is issued to the defendant Para 1 occurring in Chapter VI of the Rule framed by the High Court for the guidance of courts subordinate to it also contains a provision to this effect. The very language of CI. (d) that the plaint shall be rejected in case it appears to be barred under any law from the averments contained in the plaint itself clearly suggests that this power a court may be in a position to exercise at any preliminary stage without waiting for what the defendant may have to state in that behalf. This does not, however, mean that were there are no such allegations in the plaint, but facts showing legal bar against the maintainability of the suit are brought to the notice of the court by the defendant, the court is powerless to take notice of these facts in giving relief to him. In such cases the court may raise an issue on the point and dismiss the suit itself instead of rejecting the plaint. Rejection of plaint cannot be deferred till the final hearing in the case as such a course is likely to burden the parties with unnecessary tedium and expense of litigation and result in loss of public time and money. An order dismissing a suit in such circumstances may or may not tantamount to a decree which shall depend upon the relevant provisions of Mw under which the suit has been dismissed. It may either take away the remedy of the suit alone or may even take away the right sought to be established through it. In the present case even through the suit has been held to be barred yet the right agitated in it has not been touched at all. The impugned order, as such, is not a decree but merely an order revisable by this court.

(2.) IT is well settled that a law which affects substantive right is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment, whereas a law which merely affects procedural right is presumed to be retrospective as no litigant can claim a vested right in procedure. Two questions which, therefore, precisely fall for determination are : (i) does Sub -section (6) of Sec. 229 affect any substantive right , and (ii) if so, whether the same has been made retroactive in its application ?

(3.) SECTION 229 was substituted by another section vide Act No: XIX and Sub -section (6) was added to it for the first time in 1976 was already noticed. The lower court has taken the view that amendment of Section 229 arid addition to it of Sub -section (6) did not affect any substantive right of the petitioner, but it only provided for a change in forum, therefore, the amended provision squarely belonged to the realm of procedure. According to it, whereas, before the insertion of this Sub -section a plaintiff could file a suit in a civil court of competent jurisdiction, the present position is that he has now to approach a different forum i. e. the Minister -in -charge, Local Self Government, through the medium 01 appeal for getting the relief claimed in the suit." The court has further held -though not by employing clear and unambiguous language that even if the provision is held to have taken away the substantive right of the plaintiff -petitioner to prosecute his suit to its logical conclusion in a civil court, yet 1he use of the word "entertain" in it makes it retrospective in its application.