STATE OF J&K Vs. JUDGE, SMALL CAUSES COURT
LAWS(J&K)-2006-2-13
HIGH COURT OF JAMMU AND KASHMIR
Decided on February 28,2006

STATE OF JANDK Appellant
VERSUS
Judge, Small Causes Court Respondents

JUDGEMENT

- (1.) IMPUGNED in this writ petition with prayer for quashment thereof is a judgment purporting to have been passed by Sub -Judge (Court of Small Causes) in Civil Suit No. 7 of 1985 on 11. 8. 1994 whereunder while accepting second respondents plaint in exparte the court declared him to be the owner in possession of land measuring 1 kanal, 15 marlas and 165 Sq.ft situated in Brarinambal, Khonakhan, Srinagar, under survey Nos: 1599, 1600, 1601, 1704/1658/1607, 1659/1607, 1660/1607, 1661/1607 and held the proceedings purporting to have been initiated by Estates Department to evict the respondent therefrom under the J&K Public Premises (Eviction of Unauthorized Occupants) Act, (hereinafter to be referred to a "the Act"), to be illegal and thereby not binding.
(2.) GROUNDS pleaded are that the land in question was purely state land belonging to different government departments but wrongly encroached upon by respondent No.2 which necessitated initiation of eviction proceedings by Dy. Director Estates, under the Act which were sought to be set at naught by said respondent by instituting the civil suit before the respondent No.1 who as already said, decreed the same in exparte in violation of law as the suit even though not maintainable was decreed in absence of present petitioners of which they had no knowledge whatsoever and could as such not file an appeal in time and had to invoke extra ordinary writ jurisdiction. Materials appended with the memo of petition are the extracts of revenue record and photo copies of certain official communications as also the copies of the plaint and the statements etc. recorded by the trial court alongwith certified copy of the impugned decree and judgment.
(3.) IN his counter affidavit respondent No.2 has among other things pleaded that the writ petition is not maintainable as being directed against the decree of the civil Court and also that his continued possession has matured in ownership rights which stand declared by the court below. Nobody has however appeared for the respondents to address the court and accordingly the matter is taken up for orders. I have gone through the records and considered the matter. Record of the proceedings reveals that writ petition has been admitted to hearing as far back as on 14.8.2001 whereafter no substantial proceedings have taken place for one reason or the other till ultimately it got dismissed for want of prosecution on 16. 02. 2005, but was later restored on 27. 9. 2005. Perusal of material appended with the ex facie suggests state ownership of the suit land. As per revenue extracts it is recorded in possession of different departments of the Government while respondent No.2 has been in unauthorized occupation thereof. Undoubtedly the matter has not been effectively conducted by the petitioner in trial court which resulted in the impugned exparte decree. That it has been so, speaks volumes about the conduct of concerned Government Advocates entrusted with the case at relevant point of time. To say the least, they have been extremely careless about the interests of Government and just for want of effective prosecution have contributed in substantial loss to the Government by share default, may be willful.;


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