Sr. No.95 Suppl List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No.183/2025 CM No.2775/2025 Caveat No.1002/2025 MOHAMMAD AMIN SHAH & ANR. ... PETITIONER(S) Through: - Mr. S. M. Ayoub, Advocate. Vs. UT OF J&K & OTHERS …RESPONDENT(S) Through: - Mr. Mohammad Mubashir Gatoo, Advocate-for R5 to R7 (Caveators) CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER(ORAL) 09.05.2025 1) The petitioners, through the medium of present petition, have challenged order dated 17.04.2025 passed by the learned Sub Judge, Shopian (hereinafter referred to as “the trial court”), whereby the suit filed by the petitioners against the respondents has been stayed in view of the provisions contained in Section 3 of the J&K Migrants (Stay of Proceedings) Act, 1997 (for short “the Stay of Proceedings Act”). 2) Issue notice to the respondents No.5 to 7 in the first instance. 2 CM(M) No.183/2025 3) Mr. Mohammad Mubashir Gatoo, Advocate, who is on caveat, waives notice on behalf of respondents No.5 to 7. The caveat shall stand discharged. 4) Heard and considered. 5) It seems that the petitioners have filed a suit against the respondents before the learned trial court seeking specific performance of agreement to sell in respect of land measuring 08 marlas under Khasra No.448 situated at Hergam Shopian. A further declaration declaring the Power of Attorney dated 16th October, 2024, executed by respondents/defendants No.5 to7 in favour of respondents/defendants No.8 and 9 as null and void, has also been sought. The petitioners have further sought a permanent prohibitory injunction restraining the respondents/defendants No.1 to 4 from granting formal permission for alienation of land measuring 08 marlas under Khasra No.448 situated at Village Hergam Shopian. 6) It seems that on presentation of the suit, an interim order dated 17.12.2024 came to be passed by the learned trial court whereby the parties were directed to maintain status quo with regard to suit land measuring 08 marlas. Upon appearance of respondents/defendants No.5 to 7 before the court, they filed an application under Section 3 of the Stay of Proceedings Act, seeking stay of the 3 CM(M) No.183/2025 proceedings of the suit. The said application was allowed by the learned trial court in terms of the impugned order and the proceedings were stayed. Besides, this the interim order dated 17.12.2024 has also been kept in abeyance in terms of the impugned order. 7) The petitioner has challenged the impugned order on the grounds that by staying proceedings of the suit, the legal rights accrued to the petitioners in respect of the suit land have been taken away. It has been contended that the suit filed by the petitioners for specific performance of agreement/contract does not come within the purview of Section 3 of the Stay of Proceedings Act. It has been further contended that the suit for specific performance against a migrant is maintainable and this settled position of law has not been taken into account by the learned trial court. It has also been contended that it was not open to the learned trial court to keep the exparte interim order dated 17.12.2024 in abeyance as by doing so, the suit of the petitioners has been rendered infructuous. 8) The case set up by the petitioners in their plaint is that they had entered into an agreement to sell dated 6th September, 1999, with respondents/defendants No.5 to 7 in respect of a residential house and the land measuring 02 kanals and 13 marlas falling under Khasra No.448 4 CM(M) No.183/2025 situated at Village Hergam Shopian, for a sale consideration of Rs.12.50 lacs, out of which he had paid an amount of Rs.10.00 lacs to the said respondents/defendants. It has been pleaded that the sale deed in respect of land measuring 02 kanals and 05 marlas has already been executed by the aforesaid respondents/defendants after obtaining requisite permission under the provisions of the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (for short “the Act of 1997”) from the competent authority. However, regarding balance land of 08 marlas, the permission was not granted and the sale deed could not be executed as the said portion of the land was under the unauthorized occupation of respondents No.8 and 9. 9) It is the case of the petitioners that respondents No.5 to 7 have executed a Power of Attorney in respect of balance 08 marlas of land in favour of respondents No.8 and 9, which, in the face of agreement to sell dated 6th September, 1999, is null and void. It has been submitted that respondents No.5 to 7 are obliged to execute sale deed in respect of this balance 08 marlas of land and that the petitioners are ready to pay the balance amount of Rs.2.50 lacs to the said respondents. 5 CM(M) No.183/2025 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 6 CM(M) No.183/2025 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 7 CM(M) No.183/2025 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 8 CM(M) No.183/2025 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 9 CM(M) No.183/2025 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 10 CM(M) No.183/2025 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 trial court. 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 11 CM(M) No.183/2025 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 12 CM(M) No.183/2025 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 Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 16.05.2025 02:45