Nandu Ram vs Union Of India And Others
2023 Latest Caselaw 7 j&K

Citation : 2023 Latest Caselaw 7 j&K
Judgement Date : 16 January, 2023

Jammu & Kashmir High Court

Nandu Ram vs Union Of India And Others on 16 January, 2023

                                                                        Sr.No. 2


           HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                           AT JAMMU

                                                  RSA No. 01/2023
                                                  CM No. 92/2023


Nandu Ram                                                          ....Petitioner(s)

                 Through:-     Mr. Sunil Sethi, Sr. Advocate with
                               Mr. Mohsin Bhat, Advocate


V/s

Union of India and others                                        ....Respondent(s)

                 Through :-    Mr. Sumant Sudan, Advocate vice
                               Mr. Vishal Sharma, DSGI

Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
                                      ORDER

16.01.2023 This civil second appeal arises in the backdrop of a judgment dated

01.05.2018 passed by the trial court of learned Sub Judge, Udhampur in terms

whereof the civil suit filed by the appellant came to be dismissed on the basis of

findings returned on preliminary issues framed in the civil suit. The civil suit was

filed by the appellant on 29.09.2016 thereby seeking declaration of his status qua

the shop no. 2 situated at Bikram Enclave as being a lessee and not as a licensee

of the respondent no. 1. Of all the issues framed in the civil suit, the issue nos. 1,

2, 3, 5, 6, 11 and 13 were taken to be issues not requiring any evidence and, as

such, came to be treated as preliminary issues. Said Issues are to the following

effect:-

"Issue no. 1: Whether the parties have agreed that the Commander Military Station Udhampur shall be the sole arbitrator in case of dispute between them and that his decision shall be binding? If so, what is its effect to the suit? OPD

Issue no. 2: Whether the plaintiff is stopped from styling the suit document as lease and doctrine of estoppel is applicable?....OPD Issue no. 3: If issue No. 2 is proved in the affirmative, whether the agreement between the parties is lease deed and not a licence deed ? .....OPP "

Issue nos. 5 and 6: Whether this suit is hit by section 56 (d) of J&K Specific Relief Act and whether this suit is not properly valued is abandoned by the defendants.

Issue no. 11: Whether the defendants have served notice under public premises (Eviction of unauthorized occupants) Act to the plaintiff and the suit is not maintainable? Issue no. 13: Whether the plaintiff has cause of action to file the suit."

On the aforesaid issues the trial court came to be return findings against the appellant and thus followed the dismissal of the suit.

On the issue no. 1 that whether the parties have agreed that the Commander Military Station Udhampur shall be the sole arbitrator in case of dispute between them and that his decision shall be binding? If so, what is its effect to the suit, the trial court came to return a finding against the appellant. In view of the finding on this very issue, the trial court ought not to have ventured further to deal with the other issues framed in the case because for adjudication of those issues the merits of the case were required to be touched and in the event of the arbitration clause being there, the same was not permissible for the trial court to undertake adjudication of the other issues, but the trial court nevertheless carried out adjudication of the other issues thereby dealing with the suit of the appellant on merits.

Against the trial court judgment dated 01.05.2018, the appellant came to prefer the civil first appeal before the court of learned Principal District Judge, Udhampur on 05.05.2018 which came to be decided vide judgment dated 15.12.2022 thereby dismissing of the civil first appeal of the appellant. The lower appellate court has confirmed the finding of the trial court on issue no. 1, issue no. 2, issue no. 3 and issue no. 4. Except issue no. 1, the issue nos. 2, 3 and 4 came to be dealt with by the lower appellate court and for that touched the merits of the case and thus lower appellate court also fell in the same mode of

adjudication as was done by the trial court of learned Sub Judge, Udhampur and which was that after having found the arbitration clause governing the disputes forming subject matter of the dispute between the appellant and the respondents, the trial court as well as the lower appellate court preceded to deal with the other issues on merits.

It is in the backdrop of this that the present civil second appeal generates its substantial questions of law as to the legality and validity of the findings of the lower appellate court as well as of the trial court on other issues except Issue no. 1 as such following substantial question of law is found to be prima facie involved in the present case which is "Whether in view of the arbitration clause governing the dispute between the appellant and the respondents qua the shop in reference, the lower appellate court as well as the trial court were having any jurisdiction to adjudicate upon the other issues touching upon the merits of the disputes."