10) The question that is required to be determined is as to
whether the suit of the aforesaid nature filed by the
petitioners/plaintiffs, inter alia, against the respondents/
defendants No.5 to 7, who are, admittedly, migrants within
the meaning of Section 2(e) of the Act of 1997, can be
proceeded with in the face of the provisions contained in
Section 3 of the Stay of Proceedings Act, which reads as
under:
"Stay of proceedings against migrants.---
Notwithstanding anything to the contrary contained in
any law for the time being in force, all proceedings
pending or hereinafter filed against a migrant for
recovery of loan raised in the Kashmir Division or
relating to immovable property situated in the
Kashmir Division shall remain stayed from the
commencement of this Act till the Government
notifies otherwise :
Provided that nothing in this section shall apply to a
dispute relating to recovery of money or immovable
property inter-se migrants."
11) From a perusal of the aforesaid provision, it is clear
that all proceedings pending on the date of coming into
force of the Stay of Proceedings Act and the proceedings
filed thereafter against a migrant for recovery of loan raised
in Kashmir Division or relating to immovable property
situated in Kashmir Division have to remain stayed.
12) A Coordinate Bench of this Court in the case of Vinod
Kumar Bhat vs. Ab. Majeed Lone & anr. 2019 (5) JKJ 72
[HC] has, after noticing the provisions of Section 3 of Stay
of Proceedings Act and the statements of objects and
reasons of the said Act, observed as under:
"Keeping in view the above avowed object of the
legislation and plain interpretation of Section 3 of the
Act of 1997, there is no escape from the conclusion
that any suit filed against the migrant in relation to
either the recovery of loan raised in Kashmir Division
or immovable property situated in Kashmir Division is
required to be stayed, till the Government notifies
otherwise, whether or not the immovable property,
which is subject matter of suit, belongs to a migrant."
13) Having regard to the aforesaid position of law, it is
clear that once it is found that the proceedings have been
filed against a migrant relating to immovable property
situated in Kashmir Division, the same have to remain
stayed.
14) Learned counsel for the petitioners has placed reliance
upon the judgments of this Court in the cases of Madan Lal
Sahani and others vs. Satpal Sahani and others, 2004
(3) JKJ 183, and Gh. Rasool Bhat and Ors. Vs. Badrinath
Bhat and Ors. AIR 2009 J&K 53, to support his contention
that Section 3 of the Stay of Proceedings Act would not get
attracted to the facts of the present case.
15) The ratio laid down in the aforesaid cases cannot be
made applicable to the facts of the present case. In Madan
Lal Sahani's case (supra), the Court observed that active
participation of a defendant in the proceedings would
amount to waiver and if a migrant has participated in the
proceedings and the decree passed, the same would not be
illegal. In the present case, the respondents No.5 to 7 have
immediately upon putting in their appearance before the
learned trial court made an application under Section 3 of
the Stay of Proceedings Act without waiving their right to
seek stay of the proceedings. Similarly, in Gh. Rasool
Bhat's case (supra) the Court was not seized of the issue
relating to Stay of Proceedings Act. In the said case, the
Court had, after noticing the provisions of the Act of 1997,
in the peculiar facts and circumstances of the case where
the plaintiff had sought an alternative relief of recovery of
amount paid pursuant to the agreement to sell, come to the
conclusion that the suit for specific performance of contract
would be maintainable.
16) Thus, the facts of both the aforesaid cases, upon
which reliance has been placed by the petitioners, were
entirely different from the facts of the present case. The
ratio laid down by this Court in the said cases would not be
applicable to the facts of the present case where there is no
dispute about the status of respondents/defendants No.5
to 7 being migrants and it is also not in dispute that the
property which is subject matter of the suit belongs to the
migrants.
17) So far as contention of the petitioners that keeping in
abeyance of interim protection granted in their favour, in
terms of the impugned order is not in accordance with law,
is concerned, the same is also without any merit because,
admittedly, the petitioners have not paid the balance sale
consideration of Rs.2.50 lacs to respondents No.5 to 7 and,
admittedly, permission has not been granted for sale of 08
marlas of the suit land in favour of the petitioners by the
competent authority in terms of the Act of 1997. In these
circumstances, in view of the provisions contained in
Section 3 of the Act of 1997, the petitioners, prima facie,
cannot claim any right or interest in 08 marlas of land as
any transfer or purported transfer in violation of Section 3
of the 1997 Act is forbidden by law. Thus, the petitioners
do not have a prima facie case in their favour so as to entitle
them to grant of an interim inunction in respect of the suit
property as against the respondents/defendants.
18) Under these circumstances, the learned trial court
has rightly kept the interim order dated 17.12.2024 in
abeyance. The said part of the impugned order, therefore,
does not call for any interference by this Court.
19) In view of the above, I do not find any merit in this
petition. The same is dismissed accordingly.
20) Before parting, this Court would like to highlight
certain glaring omissions on the part of the learned trial
court in the matter of scrutinizing the plaint filed by the
petitioners, particularly the pleadings relating to valuation
of the suit and the payment of court fee. In para (19) of the
plaint, it is pleaded that the suit is valued at Rs.500/- for
the purposes of court fee and jurisdiction and the requisite
court fee has been paid thereon.
21) As has already been noticed while narrating facts of
this case, the petitioners/plaintiffs are seeking specific
performance of contract in respect of a property valued at
Rs.12.50 lacs, out of which defendants No.5 to 7 are stated
to have received Rs.10.00 lacs. It is pleaded in the plaint
that balance 08 marlas of land has not been transferred to
the plaintiffs, as such, they have retained a sum of Rs.2.50
lacs, meaning thereby that the value of the suit land
measuring 8 marlas even as per the case of the plaintiff is
Rs.2.50 lacs, regarding which the plaintiffs are seeking
specific performance of agreement to sell. It is to be noted
that the plaintiffs are also seeking possession of the land in
question along with specific performance of agreement to
sell.
22) Section 7(x)(a) of the Court Fees Act provides that in
suits for specific performance of a contract of sale, the court
fee has to be paid according to the amount of consideration.
Section 8 of Suits Valuations Act provides that the value as
determinable for the computation of court fees and the
value for purposes of jurisdiction has to be the same.
23) In the light of the provisions contained in Section
7(x)(a) of the Court Fees Act and Section 8 of the Suits
Valuation Act, the petitioners/plaintiffs had to value the
suit for the purposes of court fee and jurisdiction at Rs.2.50
lacs, which was the sale consideration fixed for 08 marlas
of suit land and they had to pay ad valorem court fee on the
said amount. Instead of doing so, the plaintiffs have valued
the suit at Rs.500/- and paid the court fee thereon. Thus,
they have tried to evade the payment of court fee. Had the
petitioners/plaintiffs valued their suit properly in
accordance with the provisions contained in Section 7(x)(a)
of the Court Fees Act and Section 8 of the Suits Valuation
Act, they had not only to pay ad valorem court fees on
Rs.2.50 lacs but even the subject matter of the suit would
have gone beyond the pecuniary jurisdiction of the learned
24) The aforesaid aspect of the matter is being highlighted
because it has come to notice of this Court in a large
number of cases that the plaintiffs/litigants are avoiding to
pay proper court fee by putting the valuation of the suits
for the purposes of court fee and jurisdiction without
adherence to the provisions contained in Section 7(x)(a) of
the Court Fees Act and Section 8 of Suits Valuation Act.
This has invariably resulted in loss to the State exchequer
and the trial courts are turning a blind eye to this aspect of
the matter and are proceeding to decide the suits without
insisting upon payment of proper court fees.
25) It is incumbent upon a civil court to scrutinize the
plaint and ascertain whether the suit has been properly
valued for the purposes of court fee and jurisdiction and
whether proper court fees has been paid. This has to be
done not only for the purposes of deciding as to whether
proper court fee has been paid but also for the purpose of
determining whether the concerned court has the
pecuniary jurisdiction to try the suit. In fact, the courts
have a duty to ensure that proper court fees is paid. For
this purpose a court is expected to verify and scrutinize the
pleadings for ascertaining valuation of the subject matter
and to take steps to recover any deficient fees.
26) In view of the above, it is, therefore, impressed upon
all the civil courts within the jurisdiction of the High Court
of J&K and Ladakh to properly scrutinize the plaints for the
purposes of ascertaining whether the suit(s) has/have been
properly valued and whether proper court fees has been
paid and if the same has not been done, the concerned
court(s) must take necessary steps so that the plaintiffs are
compelled to make good the deficiency and it is only
thereafter, that the court(s) should proceed further in the
matter. In default, the concerned court(s) should proceed
against the defaulting plaintiff(s) in accordance with the
provisions contained in Order 7 Rule 11(b) of the CPC.
27) The Registrar General shall circulate copies of this
judgment to all the civil courts within the jurisdiction of the
High Court of J&K and Ladakh, for its strict compliance.
(SANJAY DHAR)
JUDGE
Srinagar
09.05.2025
"Bhat Altaf-Secy"
Whether the order is reportable: Yes/No
