MOHD AKBAR WANI Vs. ASHMI

JUDGEMENT

(1.) IN this civil 2nd appeal the law point that falls .for consideration is as to whether the provisions of Jammu and Kashmir Agriculturists Relief Act were attracted to the suit which was for the recovery of an amount from the appellant by his divorced wife on account of the arrears of dower and for the value of ornaments alleged by her to have been withheld from her by the appellant at the time of divorce. The contention of the appellant was that he being an agriculturist within the meaning of the Agriculturists Relief Act, the suit out of which this 2nd appeal has arisen had to be tried in accordance with the provisions of the Agriculturists Relief Act and in case of decree against him, reasonable installments had to be fixed for the payment of the decretal amount. His submission was that the trial court as well as the 1st. Appellate Court have both failed to appreciate the point which had been raised even before him.

(2.) THE facts briefly are that the respondent was the divorced wife of the appellant who after having been divorced brought a suit for the recovery of an amount of Rs. 15,00/ - on account of the arrears of unpaid dower and for Rs. 1,000/ - as the value of the ornaments and clothes which the husband after divorcing her had retained with himself. The defendant -appellant contended in the trial court that he has paid the dower money and also that the respondent took her clothes and ornaments with her when she left his house. He raised a preliminary contention also that he was an agriculturist and therefore the suit was triable under the provisions of the J&K Agriculturists" Relief Act. The following two issues were raised in the trial court : 1. Whether the plaintiff is entitled to recover Rs. 15,00/ -as amount of dower and Rs. 1000/ - as value of ornaments and clothes from defendant. OPP. 2. To what relief the plaintiff is entitled to ? Both the parties led evidence in the trial court and vide its order dated 24 -7 -1976 the trial court of Sub Judge Baramulla decreed the suit for an amount of Rs. 800/ - on account of unpaid dower and also for an amount of Rs 1000/ - on account of the value of the clothes and ornaments. In all, a decree for Rs. 1800/ -was passed in favour of the respondent herein. The appellant went in appeal to the District Judge Baramulla who confirmed the judgment and decree of the learned Sub Judge Baramulla vide his order dated 29 -3 -1978.

(3.) MR . ST Hussain has made a grievance that inspite of the fact that the appellant had pleaded in the trial court and also in the 1st. appellate court that he was an agriculturist and therefore an issue had to be framed in that regard and if he succeeded in establishing that he was an agriculturist, installments had to be fixed for payment to the respondent in case a decree for any amount was passed against him, remained unheeded. Though there was no denying the fact that inspite of the preliminary objection raised by the appellant in the trial court to the effect that he was an agriculturist within the meaning of Agriculturists Relief Act, no issue has been framed by the trial court in this regard which of course should have been done, but the fact however remains that both in the trial court as well as in the 1st appellate court the matter had been raised by the learned counsel for the appellant and the point had been discussed and decided by both the courts below in their respective judgments. In the circumstances I am of the view that neither any prejudice has been caused nor any injustice has resulted as a result of the action of the trial court in not having raised the issue. Both the learned courts below have come to the conclusion that the Agriculturists Relief Act was not applicable on the facts of the case inasmuch as the debt of which the recovery was being sought by the respondent was not a debt within the meaning of the Agriculturist Relief Act. Assuming that the appellant herein was an agriculturist within the meaning of the provisions of the Agriculturists Relief Act, it requires further to be ascertained as to whether this being so was sufficient to attract the provisions of the Agriculturists Relief Act to the suit notwithstanding the suit being for the recovery of the amount of dower and for the value of the ornaments by his ex -wife. In my view a plaintiff in such a case besides establishing that he was an agriculturist has to satisfy and fulfil the other requirements in order to be within his rights to get the suit tried under the provisions of the Agriculturists Relief Act. One of these requirements, for example, was that he had to show that the money which he owned or for which a suit had been lodged against him was the money within the meaning of sub section 3 of sec. 2 of the Agriculturists Relief Act, as only such suits against the agriculturists are to be tried under the special provisions of Agriculturists Relief Act which fulfil the requirements of section 3 of the Agriculturists Relief Act which reads as under : - "3, Except as may hereinafter be otherwise be provided, the provisions of this Act apply to - (a) suits for an account instituted by an agriculturist under the provisions hereinafter contained ; and (b) suits, in which the defendant, or any one of the defendants, is an agriculturists, for the recovery of money alleged to be due to the plaintiff ; on account of money lent or advanced to, or paid for, the defendant, or as the price of goods sold, or on an account stated between the plaintiff and the defendant, or on a written or unwritten engagement for the payment of money not hereinbefore provided for." It would be thus apparent on the facts of the instant case that, if at all, the suit against the appellant herein would fall under the last clause of the said section for the recovery of money "one a written or unwritten engagement for the payment of money not hereinbefore provided." It was conceded by all concerned at the bar that the dower was a debt and was payable under Muslim Law to the wife on death of, or on divorce by the husband. The word debt has not been however denned in the Agriculturists Relief Act. The word money fortunately has been denned and the definition is given in sub section 3 to section 2 of the Act. The definition is as follows: - "2(3) money includes cash, agricultural, horticultural or pastural produce, livestock and articles made from such produce or livestock by the agriculturist or his family and also the implements of his avocation."