IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKHAT SRINAGAR
Reserved on: 14.03.2024
Pronounced on:29.03.2024
CM(M) No.277/2023
CM Nos.6535/2023 & 7438/2023
SWEETY RASHID & ORS. ...PETITIONER(S)
Through: - Mr. Shafqat Nazir, Advocate, with
Mr. M. D. Bhat, Advocate.
Vs.
BILAL AHMAD GANIE & OTHERS
…RESPONDENT(S)
Through: - Mr. M. A. Qayoom, Advocate, with
Mr. Tauseef Joo, Advocate.
CORAM: RAJNESH OSWAL, JUDGE
HON’BLE MR. JUSTICE
JUDGMENT
1) The petitioners through the medium of present petition under
Article 227 of the Constitution of India have impugned the order dated
30.09.2023 passed by the learned Additional Sessions Judge, Budgam
the Appellate Court the order
(hereinafter referred to as “ ”) whereby
dated 20.05.2022 passed by the Court of learned Chief Judicial
the Trial court )
Magistrate, Budgam (hereinafter referred to as “ ”
dismissing the application filed by the petitioners under section 12 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter for
the DV Act
short referred to as “ ”) on account of lack of territorial
jurisdiction, has been upheld.
2) The orders dated 30.09.2023 passed by the Appellate Court and
20.05.2022 passed by the Trial court have been impugned by the
CM(M) No.277/2023
1 18
CM Nos.6535/2023 & 7438/2023 Page of
petitioners on the ground that the learned Appellate Court has ignored the
intent and object behind the DV Act and has without any need and
justification subjected the evidence of the petitioners to hair-splitting
analysis as if the learned Appellate Court was conducting a murder trial. It
is stated that the learned Appellate Court has discussed the concepts of
license and lease and also thoroughly analysed the title of landlord to the
tenanted accommodation as if it was deciding the question of title of the
property. It is also urged by the petitioners that their application could not
have been dismissed on the ground of lack of territorial jurisdiction as the
lack of territorial jurisdiction does not go to the root of the matter and the
learned trial court ought to have returned the application filed under the
DV Act to the petitioners for filing the same before the appropriate court,
assuming it had no jurisdiction to entertain and try the application filed by
the petitioners.
3) The respondents have filed the response to the petition and have
raised a preliminary objection that the present petition against the
concurrent findings of fact recorded by the trial court as well as by the
Appellate Court, is not maintainable as the scope and ambit of jurisdiction
under Article 227 of the Constitution of India is very limited and the High
Court while exercising its power under Article 227 of the Constitution of
India cannot re-appreciate the evidence and upset the concurrent findings
of fact recorded by the two courts. The respondents have submitted in
detail the factual aspects of the case, which may not be relevant for the
purpose of adjudication of the present controversy, however shall be
CM(M) No.277/2023
2 18
CM Nos.6535/2023 & 7438/2023 Page of
extracted herein after, as and when required. The precise stand of the
respondents in their objections is that both the orders impugned have been
passed by the Trial court as well as by the Appellate Court well within the
domain of law after due appreciation of evidence led by the parties in
respect of territorial jurisdiction of the trial court to entertain and
adjudicate the application filed by the petitioners under DV Act. The
respondents in their response have mainly laid stress upon the conduct of
the petitioner No.1 to demonstrate that the petitioner No.1 had been
abusing the process of law time and again, not only by filing the
application under Section 12 of the DV Act before the court which lacked
the territorial jurisdiction but also the subsequent transfer application with
ulterior motive.
Arguments
4) Learned counsel for the petitioners submitted that the learned trial
court while dismissing the application filed by the petitioners under DV
Act has passed the order on assumptions and has expressed unnecessary
doubt upon the rent agreement placed on record by the petitioners while
returning a finding that the same is an outcome of an afterthought to plug
the loopholes. He further vehemently argued that the learned Appellate
Court while passing the order impugned has gone into the issue of
determining the admissibility of the document and has gone to the extent
of commenting upon the ownership of a landlord vis-à-vis the property
rented out to the petitioner No.1. He further submitted that assuming for
the sake of arguments that the trial court lacked the jurisdiction, the
application filed by the petitioners ought to have been returned to them for
CM(M) No.277/2023
3 18
CM Nos.6535/2023 & 7438/2023 Page of
filing it before the appropriate court having territorial jurisdiction as under
Section 28 of the DV Act, the Magistrate is free to devise its own
procedure for the purpose of deciding the application under DV Act. He
placed reliance upon the judgment of High Court of Judicature at Madras
in the case of Rammohan & another vs. Harika Raju & Ors (CRP
(PD) No.2089 of 2022 decided on 08.07.2022) and judgment of the High
Court of Himachal Pradesh, Shimla, in the case of Sanjeev Kumar&
Ors. Vs. Sushma Devi (Cr. Revision No.132 of 2021 decided on
01.06.2023).
5) Per contra, Mr. Qayoom, learned counsel for the respondents
submitted that the jurisdiction under Article 227 of the Constitution of
India cannot be exercised in an ordinary manner and that too when the
disputed facts are involved and the concurrent findings have been returned
by the two courts. He further submitted that the rent agreement was
managed by the petitioner No.1 so as to establish her temporary residence
at Mochwa Chadoora Budgam. He further submitted that the petitioner
No.1 had earlier filed transfer petition for transfer of the application filed
under DV Act but the said application was dismissed by this court. He
further submitted that in the civil suit filed by the petitioner No.1, she has
shown herself as a resident of Wuyan Pampore and the said suit was filed
after she filed the application under DV Act. Mr. Qayoom relied upon the
following judgments of the Supreme Court, Bombay High Court and this
Court:
a. Babtmal Raichand vs. Laxmibai R. Tarte and Ors. AIR
1975 SC 1297;
CM(M) No.277/2023
4 18
CM Nos.6535/2023 & 7438/2023 Page of
b. Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181
c. Bhagwandas and another vs. Kamal Arbol & Ors. AIR
2005 SC 2583;
d. Ramesh Mohanlal Bhutada & anr. Vs. State of
Maharashtra and Ors. 2011 CrLJ 4074
e.
Jali Begum & Ors. Vs. UT of J&K (WP(C)No.1080/2023
decided on 19.12.2023).
6) Heard learned counsel for the parties and perused the record.
Facts:
7) The brief facts necessary for disposal of the present petition are that
the petitioners filed an application under Section 12 of the DV Act before
st
the Court of Judicial Magistrate, 1 Class, Chadoora, by demonstrating
themselves as residents of Wuyan Pampore and temporary residents of
Mochwa Chadoora Budgam. The learned Magistrate vide order dated
26.06.2020 granted certain interim reliefs including the residence order,
which was impugned by the respondent No.1 by way of an appeal under
Section 29 of the DV Act, wherein a plea was raised by the respondent
No.1 that the petitioner No.1 has sworn a false affidavit showing herself
to be the resident of Mochwa Chadoora in order to obtain the order, which
was the subject matter of the appeal. The appeal preferred by the
respondent No.1 was dismissed by the Court of learned Principal Sessions
Judge, Budgam, vide order dated 17.10.2020. After the passing of interim
order dated 26.06.2020 by the learned Magistrate at Chadoora, the
petitioners also filed a suit before the Court of learned Principal District
Judge, Pulwama, wherein they showed themselves to be the residents of
Wuyan Pampore Pulwama. Thereafter the respondents submitted an
application for dismissal of the application filed by the petitioners under
CM(M) No.277/2023
5 18
CM Nos.6535/2023 & 7438/2023 Page of
section 12 of the DV Act, inter alia, on the grounds that the learned court
lacked the territorial jurisdiction to entertain the application filed by the
petitioners and in the complaint filed by the petitioner No.1 before the
National Commission for Women on 06.07.2020, the petitioner No.1 had
shown her real and correct address. The petitioners contested the
application on the ground that the petitioner No.1 was residing at Mochwa
at the time of filing the application before the court and she continued to
live in the leased accommodation. The learned JMIC, Chadoora vide
order dated 26.03.2021 returned a finding that the petitioner No.1 had not
resided at Mochwa Chadoora at any point of time and just to secure the
jurisdiction of that Court, she had mentioned the address as Mochwa
Chadoora and after retuning the said finding, the learned court dismissed
the application filed by the petitioners on the ground of lack of territorial
jurisdiction to adjudicate the matter.
8) The aforesaid order dated 26.03.2021 was impugned by the
petitioners in an appeal and the learned Additional Sessions Judge,
Budgam, vide order dated 29.04.2021 accepted the appeal filed by the
petitioners and the matter was remanded back to the learned JMIC,
Chadoora with a direction to decide the application on the issue of
territorial jurisdiction after inviting oral and documentary evidence from
the parties and after hearing both the sides afresh. The learned Additional
Sessions Judge, Budgam, simultaneously, directed that all interim reliefs
passed by the JMIC, Chadoora shall remain in operation. Thereafter the
petitioners approached the Court of Additional Sessions Judge, Budgam,
CM(M) No.277/2023
6 18
CM Nos.6535/2023 & 7438/2023 Page of
seeking implementation of order dated 29.04.2021 and vide order dated
07.09.2021, the said Court directed the implementation of the order dated
26.06.2020 passed by JMIC, Chadoora.
9) The aforesaid orders dated 29.04.2021 and 07.09.2021 were
impugned by the respondents in CM(M) No.142/2021 before this Court
and vide order dated 11.10.2021, the petition preferred by the respondents
was partly allowed and the impugned order dated 07.09.2021 passed by
the learned Additional Sessions Jude, Budgam, was set aside and the
learned trial Magistrate was directed to hear and decide the complaint
expeditiously.
10) Vide order dated 28.12.2021, the application filed by the petitioner
under section 12 of the DV Act was transferred by the learned Judicial
st
Magistrate, 1 Class, Chadoora, to the Court of Chief Judicial Magistrate,
Budgam, after noting the conduct of the petitioner No.1. Thereafter the
petitioners filed a transfer petition bearing TrP(Crl) No.04/2022 before
this Court for transfer of the application under Section 12 of the DV Act
from the Court of Chief Judicial Magistrate, Budgam, to the Court of
st
Judicial Magistrate, 1 Class, Pampore, on the ground that the parents of
the petitioner No.1 had requested her to come and reside with them at
Pampore. Vide order dated 25.04.2022, the learned Chief Judicial
Magistrate, Budgam, was directed to prepone the date of hearing in the
application and decide the issue of jurisdiction within fifteen days from
the date a copy of the order was made available to the learned Magistrate.
CM(M) No.277/2023
7 18
CM Nos.6535/2023 & 7438/2023 Page of
11) Prior to the passing the order dated 25.04.2022, the parties had led
the evidence in support of their respective claims vis-à-vis territorial
jurisdiction of the Trial Court at Budgam. The petitioners examined the
petitioner No.1, Abdul Rashid Beigh and Parvaiz Ahmad Ellahi in
support of their claim whereas the respondents examined respondent
No.1, Bashir Ahmad Ganai, Manzoor Ahmad Joo and Zahoor Ahmad SI.
The learned trial court vide order dated 20.05.2022 dismissed the
application filed by the petitioners and after taking note of the dismissal of
the application filed by the petitioners, the transfer application preferred
by the petitioners was dismissed by this Court vide order dated
30.06.2022. The petitioners thereafter assailed the order dated 20.05.2022
passed by the learned trial court whereby the application filed by the
petitioners was dismissed on account of lack of territorial jurisdiction, by
way of an appeal and the learned Appellate Court vide order impugned
dated 30.09.2023 dismissed the appeal preferred by the petitioners.
Appreciation:
12) Learned counsel for the petitioners while assailing the orders
passed by the courts below strenuously submitted that assuming the trial
court was not having the territorial jurisdiction to entertain and try the
application, the application ought to have been returned to the petitioners
for its presentation before the court of competent jurisdiction.
13) Since learned counsel for the respondents has raised a preliminary
objection in respect of maintainability of the present petition under Article
227 of the Constituting of India, as such, this Court deems it proper to
CM(M) No.277/2023
8 18
CM Nos.6535/2023 & 7438/2023 Page of
deal with the preliminary objections raised by Mr. Qayoom at the first
instance. It has been submitted by learned counsel for the respondents that
jurisdiction under Article 227 of the Constitution of India cannot be
invoked to correct the error of law or fact and it is only when the courts
subordinate to the High Court commit jurisdictional error that the High
Court can invoke the jurisdiction under Article 227 of the Constitution of
India to keep the courts subordinate to it within the bounds of their
jurisdiction.
14)
The Hon’ble Supreme Court of India has dealt in detail the scope of
jurisdiction of High Court under article 227 of the Constitution of India to
interfere with the orders passed by the courts/tribunals subject to
superintendence and control of High Courts, in case titled Shalini Shyam
Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 and has laid down
the parameters for the High Court for exercising power under article 227
of the Constitution of India and the relevant paras are extracted as under:
49. On an analysis of the aforesaid decisions of this Court,
the following principles on the exercise of High Court’s
jurisdiction under Article 227 of the Constitution may be
formulated:
(a) A petition under Article 226 of the Constitution is
different from a petition under Article 227. The mode of
exercise of power by the High Court under these two
articles is also different.
(b) In any event, a petition under Article 227 cannot be
called a writ petition. The history of the conferment of
writ jurisdiction on High Courts is substantially different
from the history of conferment of the power of
superintendence on the High Courts under Article 227
and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in
exercise of its power of superintendence under
CM(M) No.277/2023
9 18
CM Nos.6535/2023 & 7438/2023 Page of
Article 227 of the Constitution, interfere with the
orders of tribunals or courts inferior to it. Nor can it,
in exercise of this power, act as a court of appeal over
the orders of the court or tribunal subordinate to it.
In cases where an alternative statutory mode of redressal
has been provided, that would also operate as a restrain
on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in
exercise of their power of superintendence have been
repeatedly laid down by this Court. In this regard the High
Court must be guided by the principles laid down by the
Constitution Bench of this Court in Waryam Singh [AIR
1954 SC 215] and the principles in Waryam Singh [AIR
1954 SC 215] have been repeatedly followed by
subsequent Constitution Benches and various other
decisions of this Court.
(e) According to the ratio in Waryam Singh [AIR 1954 SC
215] , followed in subsequent cases, the High Court in
exercise of its jurisdiction of superintendence can
interfere in order only to keep the tribunals and
courts subordinate to it, “within the bounds of their
authority”.
(f) In order to ensure that law is followed by such
tribunals and courts by exercising jurisdiction which
is vested in them and by not declining to exercise the
jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High
Court can interfere in exercise of its power of
superintendence when there has been a patent
perversity in the orders of the tribunals and courts
subordinate to it or where there has been a gross and
manifest failure of justice or the basic principles of
natural justice have been flouted.
(h) In exercise of its power of superintendence High Court
cannot interfere to correct mere errors of law or fact or
just because another view than the one taken by the
tribunals or courts subordinate to it, is a possible view. In
other words the jurisdiction has to be very sparingly
exercised.
(i) The High Court’s power of superintendence under
Article 227 cannot be curtailed by any statute. It has been
declared a part of the basic structure of the Constitution
by the Constitution Bench of this Court in L. Chandra
Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S)
577] and therefore abridgment by a constitutional
amendment is also very doubtful.
CM(M) No.277/2023
10 18
CM Nos.6535/2023 & 7438/2023 Page of
(j) It may be true that a statutory amendment of a rather
cognate provision, like Section 115 of the Civil Procedure
Code by the Civil Procedure Code (Amendment) Act, 1999
does not and cannot cut down the ambit of High Court’s
power under Article 227. At the same time, it must be
remembered that such statutory amendment does not
correspondingly expand the High Court’s jurisdiction of
superintendence under Article 227.
(k) The power is discretionary and has to be exercised on
equitable principle. In an appropriate case, the power can
be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered
power of the High Court under Article 227, it transpires
that the main object of this article is to keep strict
administrative and judicial control by the High Court on
the administration of justice within its territory.
(m) The object of superintendence, both administrative
and judicial, is to maintain efficiency, smooth and orderly
functioning of the entire machinery of justice in such a
way as it does not bring it into any disrepute. The power
of interference under this article is to be kept to the
minimum to ensure that the wheel of justice does not
come to a halt and the fountain of justice remains pure
and unpolluted in order to maintain public confidence in
the functioning of the tribunals and courts subordinate to
the High Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercised just for grant of
relief in individual cases but should be directed for
promotion of public confidence in the administration
of justice in the larger public interest whereas Article
226 is meant for protection of individual grievance.
Therefore, the power under Article 227 may be
unfettered but its exercise is subject to high degree of
judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will
be counterproductive and will divest this extraordinary
power of its strength and vitality.
15)
From the above authoritative pronouncement of the Hon’ble
Supreme Court of India it is evident that High Court cannot act as
appellate court while exercising the jurisdiction under article 227 of the
Constitution of India and it can show indulgence only when there is
CM(M) No.277/2023
11 18
CM Nos.6535/2023 & 7438/2023 Page of
manifest failure of justice or refusal on the part of the court to exercise
jurisdiction vested in it or where the court exceeds the jurisdiction. Such
jurisdiction is also to be exercised in public interest. In fact, the
constitutional duty has been cast upon the High Court to ensure that the
courts/tribunals subject to its superintendence and control, function within
the limits of their respective jurisdictions and in the event of any
jurisdictional infraction on their part, the High Court(s) can intervene
under Article 227 of the Constitution of India.
16) Now this Court would examine as to whether the learned trial court
has committed any jurisdictional error causing miscarriage of justice to
the petitioners or not.
17) The DV Act was enacted by the Parliament in the fifty-sixth year of
the Republic of India with avowed purpose to curb the domestic violence
and to provide protection to the aggrieved person. Taking into
consideration the object of the DV Act, a whole mechanism was put in
place in the Act (supra) so as to ensure that the aggrieved person does not
suffer rigmarole of trial under civil law as well as criminal law. In order to
achieve the salutary purpose for which the DV Act was enacted, the
Magistrate under the Act has been vested with wide powers not only to
issue final orders under Sections 18, 19, 20, 21 and 22 of the Act (supra)
but also to grant interim and ex-parte orders. Though Section 28 of the
DV Act provides that all proceedings under Sections 12, 18, 19, 20, 21, 22
and 23 and offences under Section 31 shall be governed by the provisions
of the Code of Criminal Procedure, 1973 but at the same time Section 28
CM(M) No.277/2023
12 18
CM Nos.6535/2023 & 7438/2023 Page of
leaves the Court free to lay down its own procedure for disposal of an
application under Section 12 or under sub-section (2) of Section 23 of the
Act. This is deliberate departure from the normal procedural laws with
intention to achieve the object of the Act so as to ensure that the aggrieved
person does not get trapped in the intricacies of procedural laws. It casts
an obligation upon the courts under the Act to ensure that justice to the
aggrieved person does not itself become the victim of procedural laws.
18) It is true that under Section 27 of the DV Act, the aggrieved person
can approach the Magistrate of first class at a place where the aggrieved
person permanently or temporarily resides or carries on business or is
employed and at the same time Section 27 provides that any order made
under the Act shall be enforceable throughout India.
19) Now the moot question arises whether the Magistrate lacking the
territorial jurisdiction to entertain the application under Section 12 of the
DV Act can return the application to the aggrieved person for its
presentation before the Court having the territorial jurisdiction or not?
This Court in Khalid Amin Kohli Vs UT of J&K,2023 Live Law (JKL)
194, has already held that the proceedings under the DV Act are not
criminal proceedings. In Kamatchi v. Lakshmi Narayanan, (2022) 15
SCC 50, the
the Hon’ble Supreme Court of India also has observed that
High Court wrongly equated filing of an application under Section 12 of
the Act to lodging of a complaint or initiation of prosecution.
20) Equally true is that the relief provided under the Act (supra) can be
sought by the aggrieved person even in suits and other legal proceedings
CM(M) No.277/2023
13 18
CM Nos.6535/2023 & 7438/2023 Page of
before the Civil Court, Family Court or a Criminal Court. In the instant
case, the petitioners have not approached the Civil Court, Family Court or
Criminal Court but have chosen to approach the Magistrate independently
vested with the powers and jurisdiction under the DV Act. Though the
DV Act is absolutely silent in respect of the power of the Magistrate
lacking territorial jurisdiction to entertain and try the application under the
DV Act, to return the application to the aggrieved person for its
presentation before the court having the territorial jurisdiction to
adjudicate the same but Section 28 of the said Act, as mentioned above,
permits the Magistrate to lay down its own procedure for disposal of an
application under Section 12 or under sub-section (2) of Section 23 of the
Act (supra).
21) Even in the Code of Criminal Procedure, prior to taking of
cognizance, the Magistrate, who does not have the jurisdiction to entertain
the complaint, can return the complaint to the complainant for its
presentation before the Court of competent jurisdiction under Section 201
of the Criminal Procedure Code. Under Order 7 Rule 10 CPC, the Civil
Court can return the plaint for its presentation before the court of
competent jurisdiction.
22) It is true that there is no provision in the DV Act to return the
application to the aggrieved person for its presentation before the court of
competent jurisdiction but once the Civil Courts and Criminal Courts
have been vested with power to return the complaint or suit, as the case
may be, to the plaintiff(s)/complainant(s), then it would be a travesty of
CM(M) No.277/2023
14 18
CM Nos.6535/2023 & 7438/2023 Page of
justice if the provisions of the DV Act are interpreted in manner that the
Court exercising the jurisdiction under the DV Act lacks the power to
return the application for its presentation before the court of competent
jurisdiction on account of lack of territorial jurisdiction to entertain and
try the application, more particularly in view of subsection (2) of Section
28 of the DV Act. The dismissal of the application under the DV Act on
the ground of lack of territorial jurisdiction would defeat the very purpose
of expeditious disposal of the proceedings under the DV Act as mandated
under sub-section (5) of Section 12 of the said Act (supra). It is settled
law that the provisions of the DV Act are to be interpreted and applied in
a manner so as to advance the cause of justice meaning thereby which
achieves the purpose for which the law has been put into place and not in
a manner which defeats the very purpose, soul and spirit of the Act. The
Vaishali Abhimanyu Joshi v. Nanasaheb
Hon’ble Supreme Court in
Gopal Joshi, (2017) 14 SCC 373, has observed that interpretation of the
Act should be in a manner to effectuate its object and purpose.
23) This Court is of the considered view that in the instant case even if
the trial court had lacked the territorial jurisdiction, the application ought
to have been returned to the petitioners for its presentation before the
court having the territorial jurisdiction. The failure on the part of learned
trial court to return the application to the petitioners for its presentation
before the court of competent jurisdiction shall fall within the meaning of
the jurisdiction of this
‘jurisdictional error’ and, as such, amenable to
Court under Article 227 of the Constitution of India.
CM(M) No.277/2023
15 18
CM Nos.6535/2023 & 7438/2023 Page of
24) This Court would also like to observe that the mode and manner in
which the proceedings have been dealt with by the learned trial court as
also by the learned Appellate Court is not in accordance with the spirit of
the Act. The learned trial court has decided the issue of jurisdiction by
returning a finding that the rent agreement was in fact an outcome of
afterthought and while returning this finding, the trial court has observed
that the date of issuance of the stamp paper is 26.12.2019 whereas the rent
deed has been executed on 23.06.2020 and as per rules, all stamp papers
st
expire on 31 March of every year and un-used stamps are to be deposited
back into the treasury and, as such, there was no occasion to draft the rent
deed on an expired stamp paper. The observations and the finding
returned are
contrary to the judgment of the Hon’ble Supreme Court in
Thiruvengadam Pillai v. Navaneethammal, (2008) 4 SCC 530, wherein
it has been held as under:
Re: Question (i)
11. The trial court and the High Court have doubted the
genuineness of the agreement dated 5-1-1980 because it was
written on two stamp papers purchased on 25-8-1973 and 7-
8-1978. The learned counsel for the first respondent
submitted that apart from raising a doubt about the
authenticity of the document, the use of such old stamp
papers invalidated the agreement itself for two reasons.
Firstly, it was illegal to use stamp papers purchased on
different dates for execution of a document. Secondly, as
the stamp papers used in the agreement of sale were
more than six months old, they were not valid stamp
papers and consequently, the agreement prepared on
such “expired” papers was also not valid. We will deal
with the second contention first. The Stamp Act, 1899
nowhere prescribes any expiry date for use of a stamp
paper. Section 54 merely provides that a person
possessing a stamp paper for which he has no immediate
use (which is not spoiled or rendered unfit or useless),
can seek refund of the value thereof by surrendering
such stamp paper to the Collector provided it was
purchased within the period of six months next preceding
the date on which it was so surrendered. The stipulation
CM(M) No.277/2023
16 18
CM Nos.6535/2023 & 7438/2023 Page of
of the period of six months prescribed in Section 54 is
only for the purpose of seeking refund of the value of the
unused stamp paper, and not for use of the stamp paper.
Section 54 does not require the person who has
purchased a stamp paper, to use it within six months.
Therefore, there is no impediment for a stamp paper
purchased more than six months prior to the proposed
date of execution, being used for a document.
25) The learned Appellate Court instead of rectifying the error
committed by the learned trial court has gone a step further by returning a
finding that the person who executed the rent deed in favour of the
petitioner No.1 was not competent to do so as he was not the owner of the
property. It needs to be noted that the Appellate Court was not deciding
the title suit but was only required to examine the validity of the order
passed by the trial court. The Appellate Court has rejected the rent
agreement also on the ground that it was not exhibited by the party. Once
the document was admitted by PW Parvaiz Ellahi to have been executed
by him, there was no occasion for the learned Appellate Court to reject the
document solely on the ground that the same was not exhibited. Once the
contents of the document are proved, the document has to be admitted in
evidence and merely non-exhibiting the document would not make the
document inadmissible in evidence once its contents are proved. Reliance
is placed upon the decision of the Apex Court in Narbada Devi Gupta v.
Birendra Kumar Jaiswal, (2003) 8 SCC 745, wherein it has been held as
under:
16. Reliance is heavily placed on behalf of the appellant on the case
of Ramji Dayawala& Sons (P) Ltd. [(1981) 1 SCC 80] The legal position
is not in dispute that mere production and marking of a
document as exhibit by the court cannot be held to be a due
proof of its contents. Its execution has to be proved by
admissible evidence, that is, by the “evidence of those persons
who can vouchsafe for the truth of the facts in issue”. The
CM(M) No.277/2023
17 18
CM Nos.6535/2023 & 7438/2023 Page of
situation is, however, different where the documents are produced,
they are admitted by the opposite party, signatures on them are also
admitted and they are marked thereafter as exhibits by the court. We
find no force in the argument advanced on behalf of the appellant
that as the mark of exhibits has been put on the back portions of the
rent receipts near the place where the admitted signatures of the
plaintiff appear, the rent receipts as a whole cannot be treated to
have been exhibited as admitted documents.
26) Though this Court is not upsetting the impugned orders on the
errors mentioned above but at the same time deemed it proper to take note
of the errors committed by both the courts below.
Conclusion
27) In view of above, this Court finds it a fit case for invoking the
powers under Article 227 of the Constitution of India to set aside the
impugned orders. Accordingly, both the impugned orders dated
30.09.2023 passed by the learned Additional Sessions Judge, Budgam and
20.05.2022 passed by the Court of learned Chief Judicial Magistrate,
Budgam, are set aside and the learned Chief Judicial Magistrate, Budgam
is directed to return the application of the petitioners for presenting the
same before the court having the territorial jurisdiction to adjudicate the
matter.
28) Disposed of as above.
29) Copy of this order be sent to the learned trial court for information
and compliance.
(Rajnesh Oswal)
Judge
SRINAGAR
29.03.2024
“Bhat Altaf-Secy”
Whether the order is reportable: Yes
CM(M) No.277/2023
18 18
CM Nos.6535/2023 & 7438/2023 Page of