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Mool Raj Vs. Atma Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Second Appeal No. 16 of 1980
Judge
Reported inAIR1986J& K24
ActsSpecific Relief Act, 1963 - Section 42; ;Code of Civil Procedure (CPC) , 1908 - Section 9
AppellantMool Raj
RespondentAtma Ram
Appellant Advocate A.V. Gupta, Adv.
Respondent Advocate D.K. Gupta, Adv.
DispositionAppeal allowed
Cases ReferredVemareddi Ramaraghava Reddy v. Konduru Seshu Reddy
Excerpt:
- .....for the appellant has submitted that no declaration can be granted to the plaintiff as none of the civil rights of the plaintiff are affected by the defendant's status. section 9 of the civil p.c. has been invoked and it is asserted that the suit cannot be tried as it does not involve any dispute of a civil nature. reliance has been placed on district board of farrukhabad v. prag dutt, air 1948 all 382 (fb), and mohd. sher khan v. union of india, air 1964 all 63.4. the learned counsel for the respondent has invited my attention to a full bench authority of this court, viz : behari lal v. behari lal, air 1972 j & k 114. in para 14 of this judgment it is held that if a question about a party being a permanent resident of the state arises before a court, it can be decided by the civil.....
Judgment:

M.L. Bhat, J.

1. In a suit for declaration the plaintiff has challenged the status of the defendant as a permanent resident of the State of Jammu and Kashmir. It is alleged that the defendant was a resident of Sialkot and had shifted to the State of Jammu and Kashmir in the year 1947 and was not entitled to be declared as a permanent resident of the State of Jammu and Kashmir and the State Subject Certificate issued in his favour by the Tahsildar on 22-8-1956 is challenged on the ground that it has been obtained by fraud. Among the issues framed by the trial Court, two issues were treated as preliminary issues which are Issues Nos. 1 and 4. These two issues are as under :--

Issue No. 1, Whether the suit is not triable by the Civil Court? Order P.D.

Issue No. 4. Whether the plaintiff has no right to institute the present suit? Order P.D.

The trial court returned its finding on these issues in favour of the defendant and the suit of the plaintiff was dismissed. On perusal the learned Addl. District Judge reversed the findings of the trial court and held the suit maintainable.

2. I have heard the learned counsel for the parties, and examined the record and the law on the subject.

3. Learned counsel for the appellant has submitted that the suit for declaration as regards the status of the defendant is not maintainable unless the plaintiff seeks a relief in his favour or shows in what manner the defendant's status would affect the plaintiffs rights. From the perusal of the plaint it transpires that the plaintiff has not shown anything in the plaint about his own rights or about the likely effect of his rights by the defendant being a permanent resident of the State of Jammu and Kashmir. Learned counsel for the appellant has submitted that no declaration can be granted to the plaintiff as none of the civil rights of the plaintiff are affected by the defendant's status. Section 9 of the Civil P.C. has been invoked and it is asserted that the suit cannot be tried as it does not involve any dispute of a civil nature. Reliance has been placed on District Board of Farrukhabad v. Prag Dutt, AIR 1948 All 382 (FB), and Mohd. Sher Khan v. Union of India, AIR 1964 All 63.

4. The learned counsel for the respondent has invited my attention to a Full Bench authority of this Court, viz : Behari Lal v. Behari Lal, AIR 1972 J & K 114. In Para 14 of this judgment it is held that if a question about a party being a permanent resident of the State arises before a Court, it can be decided by the civil Court. Civil Court can consider whether a litigant before it is or is not a permanent resident of the State. This was a case in which status of a litigant as being a permanent resident of the State had a bearing on the controversy involved in the litigation, and opposite side's rights were likely to be affected. Therefore, the law laid down in this authority was on a different point and was not directly in issue before the Court. Learned counsel for the respondent has also referred to an authority of the Supreme Court viz : Vemareddi Ramaraghava Reddy v. Konduru Seshu Reddy, AIR 1967 SC 436 for the proposition that Under Section 42 of the Specific Relief Act declaration of any nature can be granted. Section 42 of the Specific Relief Act was held to be only illustrative and not exhaustive. It was a case in which a worshipper was held competent to maintain a suit on behalf of a deity.

5. I am not inclined to agree with the learned counsel for the respondent that a suit simpliciter for a negative declaration about the status of any person is maintainable without showing as to in what manner status of the other side has affected the civil rights of the plaintiff. At no place in the plaint the plaintiff has shown that his rights are likely to be affected by the defendant being a permanent resident of the State. The plaintiff in a suit for declaration has to depend on his own right and title and if that right or title is denied or affected by the other side a declaratory suit can be maintained. Without showing his own right, the pltff. cannot claim declaration in the negative form as regards the status of the defendant. Unless the pltff. shows in the plaint that his civil rights are likely to be affected by the defendant's status or the defdt. has denied his civil rights by being a permanent resident of the State, a suit for declaration in the present form would not be maintainable.

6. Section 42 of the Specific Relief Actreads as under :

'Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right,and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief :

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.''

From the perusal of this section, it is clear that the plaintiffs rights must be in jeopardy or must have been denied. Those rights must be civil rights, affecting person or property. The present suit does not fall within the ambit of Section 42 of the Specific Relief Act. In AIR 1967 SC 436 (supra) there was a dispute as regards the deity's property which could be protected by a worshipper also. In that view of the matter the Supreme Court enlarged the scope of Section 42 of the Specific Relief Act. No declaration can be granted as regards status of a person if that status is not shown to have affected the rights of the plaintiff in any manner. In the Full Bench authority of this Court AIR 1972 J & K 114 (supra) controversy, was entirely different and the status of a litigant as the permanent resident of the State was injurious to the civil rights of the other side. Moreover it was not a suit for declaration simpliciter but it in a suit for declaration any right of the plaintiff is affected by his adversary being a permanent resident of State, adversary's status as being a permanent resident of the State can be determined by the civil Court. This is not an authority for the proposition that a suit for declaration in the negative form as regards the defendant's status as a permanent resident of the State would be maintainable without showing as to in what manner the pltff.'s rights are affected. Such a suit would be incompetent and would not fall within Section 9, Civil Procedure Code because no civil right of the plaintiff is shown to be affected or likely to be affected by the defendant being a permanent resident. Negative declarations are not always barred. Such a declaration can be granted if the plaintiff shows that his civil rights are likely to be affected by his adversary's status. Without showing that no declaration can be granted Under Section 42 of the Specific Relief Act.

7. For the reasons stated above, I accept this appeal, set aside the judgment and decree of the first appellate Court dated 31-3-1980 and restore the judgment and decree of the trial Court dated 16-8-1979. No order as to costs.


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