Decided on July 01,1999

Bashir Ahmed Sheikh Respondents


- (1.) FACTS of the case being peculiar, a detailed narration is necessary. The Government in the Revenue Department, issued Order No. 250 -GR(S) of 1990 dated 21.12.90 directing that settlement operation be taken up in the Tehsils of Anantnag, Pulwama, Chadoora, Srinagar, Leh and Kargil of Kashmir division besides a few tehsils in Jammu Division. Since some additional man power was required to take up the assessment, therefore. Settlement Officers were allowed to engage Chairmen on payment of daily wages. Accordingly, the Financial Commissioner (R) vide order dated 19 -3 -1992 had constituted a committe under the chairmanship of Asstt. Commissioner (R) for the engagement of Chairmen. He had also issued necessary guidelines as to who and in what manner such persons should be selected. Subsequently, it came to the notice of the Financial Commissioner that these guidelines have been violated. So, by order dated 16.2.93, he issued fresh guidelines and also directed termination of those already engaged. However, even before this, the Assistant Commissioner (R) (Settlement Pulwama) had by orders dated 25.6.92 and 14.7.92 canceled the engagement of Chairmen in District Pulwama, who had been engaged vide order dated 15.5.92 issued by the Chairman, Settlement, Appointing Board, Pulwama and the Tehsildar settlement Pulwama
(2.) THE aforesaid orders of cancellation of engagement were challenged in a suit for declaration and permanent injunction filed by 108 persons in the court of District Judge, Pulwama. The plaint bears the date of verification as 19 -08 -1992 but it does not bear the date of its presentation in the court.
(3.) HOWEVER , the learned District Judge, Pulwama (Shri Abdul Rehman Bhat) passed an order dated 19 -08 -1992, dispensing with notice under Section 80 of CPC and directing registration of the suit. On 20 -08 -1992, the Tehsildar (Settlement), Pulwama -defendant -4 appeared in the court and appears to have informed it about the pendency of the writ petition in Srinagar Bench of this court Consequently, the learned District Judge passed the following order: - ...However, it may be mentioned that a photostat copy of the order passed by Honâ„¢ble High Court on 8th of July 1992, in writ petition No. 1829/92 has been submitted before this court by the defendant -4. The plain reading of this order suggests that the matter is already sub -judice before the Honâ„¢ble High Court and as such counsels for the plaintiffs are hereby directed either to get the writ petition withdrawn from the Honâ„¢ble High Court or convince this court as to whether the suit is maintainable in presence of the writ petition before the Honâ„¢ble High Court before the interim application can be processed with. Unless the procedural snag is removed court cannot be in a position to adjudicate upon the petition enshrining the interim relief.  On 24 -08 -1992, the court passed the following order -Counsel for the plaintiffs present. Nemo present for the defendants. The process which has already been issued to the defendant -1 for causing his appearance in the court has not so far been received back from that quarter. As such let a fresh process be issued to the defendant -1. The other defendants were present through their subordinate officials to whom this date was duly communicated for causing the appearance of the defendant -2 and 3. Defendant -4 was also present in person. Today neither of them are present and they do my satisfaction and opinion have wilfully abstained from joining the proceedings before this court and have chosen to be in deep as lumber. They have virtually failed to raise to the occasion atleast to get their action which is impugned before this court fortified by any sort of reasoning. As such defendants 2, 3 and 4 are hereby set exparte. The suit file be now put up for further orders with respect to presence of the defendant -1 in the court on 9th Sept., 1992. ;

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