CM(M) No.277/2023

CM Nos.6535/2023 & 7438/2023 Page 1 of 18

IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKHAT SRINAGAR

Reserved on: 14.03.2024

Pronounced on:29.03.2024

CM(M) No.277/2023

CM Nos.6535/2023 & 7438/2023

SWEETY RASHID & ORS. ...PETITIONER(S)

Through: - Mr. Shafqat Nazir, Advocate, with

Mr. M. D. Bhat, Advocate.

Vs.

BILAL AHMAD GANIE & OTHERS …RESPONDENT(S)

Through: - Mr. M. A. Qayoom, Advocate, with

Mr. Tauseef Joo, Advocate.

CORAM:HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

JUDGMENT

1) The petitioners through the medium of present petition under

Article 227 of the Constitution of India have impugned the order dated

30.09.2023 passed by the learned Additional Sessions Judge, Budgam

(hereinafter referred to as “the Appellate Court”) whereby the order

dated 20.05.2022 passed by the Court of learned Chief Judicial

Magistrate, Budgam (hereinafter referred to as “the Trial court”)

dismissing the application filed by the petitioners under section 12 of the

Protection of Women from Domestic Violence Act, 2005 (hereinafter for

short referred to as “the DV Act”) on account of lack of territorial

jurisdiction, has been upheld.

2) The orders dated 30.09.2023 passed by the Appellate Court and

20.05.2022 passed by the Trial court have been impugned by the

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petitioners on the ground that the learned Appellate Court has ignored the

intent and object behind the DV Act and has without any need and

justification subjected the evidence of the petitioners to hair-splitting

analysis as if the learned Appellate Court was conducting a murder trial. It

is stated that the learned Appellate Court has discussed the concepts of

license and lease and also thoroughly analysed the title of landlord to the

tenanted accommodation as if it was deciding the question of title of the

property. It is also urged by the petitioners that their application could not

have been dismissed on the ground of lack of territorial jurisdiction as the

lack of territorial jurisdiction does not go to the root of the matter and the

learned trial court ought to have returned the application filed under the

DV Act to the petitioners for filing the same before the appropriate court,

assuming it had no jurisdiction to entertain and try the application filed by

the petitioners.

3) The respondents have filed the response to the petition and have

raised a preliminary objection that the present petition against the

concurrent findings of fact recorded by the trial court as well as by the

Appellate Court, is not maintainable as the scope and ambit of jurisdiction

under Article 227 of the Constitution of India is very limited and the High

Court while exercising its power under Article 227 of the Constitution of

India cannot re-appreciate the evidence and upset the concurrent findings

of fact recorded by the two courts. The respondents have submitted in

detail the factual aspects of the case, which may not be relevant for the

purpose of adjudication of the present controversy, however shall be

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extracted herein after, as and when required. The precise stand of the

respondents in their objections is that both the orders impugned have been

passed by the Trial court as well as by the Appellate Court well within the

domain of law after due appreciation of evidence led by the parties in

respect of territorial jurisdiction of the trial court to entertain and

adjudicate the application filed by the petitioners under DV Act. The

respondents in their response have mainly laid stress upon the conduct of

the petitioner No.1 to demonstrate that the petitioner No.1 had been

abusing the process of law time and again, not only by filing the

application under Section 12 of the DV Act before the court which lacked

the territorial jurisdiction but also the subsequent transfer application with

ulterior motive.

Arguments

4) Learned counsel for the petitioners submitted that the learned trial

court while dismissing the application filed by the petitioners under DV

Act has passed the order on assumptions and has expressed unnecessary

doubt upon the rent agreement placed on record by the petitioners while

returning a finding that the same is an outcome of an afterthought to plug

the loopholes. He further vehemently argued that the learned Appellate

Court while passing the order impugned has gone into the issue of

determining the admissibility of the document and has gone to the extent

of commenting upon the ownership of a landlord vis-à-vis the property

rented out to the petitioner No.1. He further submitted that assuming for

the sake of arguments that the trial court lacked the jurisdiction, the

application filed by the petitioners ought to have been returned to them for

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filing it before the appropriate court having territorial jurisdiction as under

Section 28 of the DV Act, the Magistrate is free to devise its own

procedure for the purpose of deciding the application under DV Act. He

placed reliance upon the judgment of High Court of Judicature at Madras

in the case of Rammohan & another vs. Harika Raju & Ors (CRP

(PD) No.2089 of 2022 decided on 08.07.2022) and judgment of the High

Court of Himachal Pradesh, Shimla, in the case of Sanjeev Kumar&

Ors. Vs. Sushma Devi (Cr. Revision No.132 of 2021 decided on

01.06.2023).

5) Per contra, Mr. Qayoom, learned counsel for the respondents

submitted that the jurisdiction under Article 227 of the Constitution of

India cannot be exercised in an ordinary manner and that too when the

disputed facts are involved and the concurrent findings have been returned

by the two courts. He further submitted that the rent agreement was

managed by the petitioner No.1 so as to establish her temporary residence

at Mochwa Chadoora Budgam. He further submitted that the petitioner

No.1 had earlier filed transfer petition for transfer of the application filed

under DV Act but the said application was dismissed by this court. He

further submitted that in the civil suit filed by the petitioner No.1, she has

shown herself as a resident of Wuyan Pampore and the said suit was filed

after she filed the application under DV Act. Mr. Qayoom relied upon the

following judgments of the Supreme Court, Bombay High Court and this

Court:

a. Babtmal Raichand vs. Laxmibai R. Tarte and Ors. AIR

1975 SC 1297;

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b. Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181

c. Bhagwandas and another vs. Kamal Arbol & Ors. AIR

2005 SC 2583;

d. Ramesh Mohanlal Bhutada & anr. Vs. State of

Maharashtra and Ors. 2011 CrLJ 4074

e. Jali Begum & Ors. Vs. UT of J&K (WP(C)No.1080/2023

decided on 19.12.2023).

6) Heard learned counsel for the parties and perused the record.

Facts:

7) The brief facts necessary for disposal of the present petition are that

the petitioners filed an application under Section 12 of the DV Act before

the Court of Judicial Magistrate, 1

st

Class, Chadoora, by demonstrating

themselves as residents of Wuyan Pampore and temporary residents of

Mochwa Chadoora Budgam. The learned Magistrate vide order dated

26.06.2020 granted certain interim reliefs including the residence order,

which was impugned by the respondent No.1 by way of an appeal under

Section 29 of the DV Act, wherein a plea was raised by the respondent

No.1 that the petitioner No.1 has sworn a false affidavit showing herself

to be the resident of Mochwa Chadoora in order to obtain the order, which

was the subject matter of the appeal. The appeal preferred by the

respondent No.1 was dismissed by the Court of learned Principal Sessions

Judge, Budgam, vide order dated 17.10.2020. After the passing of interim

order dated 26.06.2020 by the learned Magistrate at Chadoora, the

petitioners also filed a suit before the Court of learned Principal District

Judge, Pulwama, wherein they showed themselves to be the residents of

Wuyan Pampore Pulwama. Thereafter the respondents submitted an

application for dismissal of the application filed by the petitioners under

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section 12 of the DV Act, inter alia, on the grounds that the learned court

lacked the territorial jurisdiction to entertain the application filed by the

petitioners and in the complaint filed by the petitioner No.1 before the

National Commission for Women on 06.07.2020, the petitioner No.1 had

shown her real and correct address. The petitioners contested the

application on the ground that the petitioner No.1 was residing at Mochwa

at the time of filing the application before the court and she continued to

live in the leased accommodation. The learned JMIC, Chadoora vide

order dated 26.03.2021 returned a finding that the petitioner No.1 had not

resided at Mochwa Chadoora at any point of time and just to secure the

jurisdiction of that Court, she had mentioned the address as Mochwa

Chadoora and after retuning the said finding, the learned court dismissed

the application filed by the petitioners on the ground of lack of territorial

jurisdiction to adjudicate the matter.

8) The aforesaid order dated 26.03.2021 was impugned by the

petitioners in an appeal and the learned Additional Sessions Judge,

Budgam, vide order dated 29.04.2021 accepted the appeal filed by the

petitioners and the matter was remanded back to the learned JMIC,

Chadoora with a direction to decide the application on the issue of

territorial jurisdiction after inviting oral and documentary evidence from

the parties and after hearing both the sides afresh. The learned Additional

Sessions Judge, Budgam, simultaneously, directed that all interim reliefs

passed by the JMIC, Chadoora shall remain in operation. Thereafter the

petitioners approached the Court of Additional Sessions Judge, Budgam,

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seeking implementation of order dated 29.04.2021 and vide order dated

07.09.2021, the said Court directed the implementation of the order dated

26.06.2020 passed by JMIC, Chadoora.

9) The aforesaid orders dated 29.04.2021 and 07.09.2021 were

impugned by the respondents in CM(M) No.142/2021 before this Court

and vide order dated 11.10.2021, the petition preferred by the respondents

was partly allowed and the impugned order dated 07.09.2021 passed by

the learned Additional Sessions Jude, Budgam, was set aside and the

learned trial Magistrate was directed to hear and decide the complaint

expeditiously.

10) Vide order dated 28.12.2021, the application filed by the petitioner

under section 12 of the DV Act was transferred by the learned Judicial

Magistrate, 1

st

Class, Chadoora, to the Court of Chief Judicial Magistrate,

Budgam, after noting the conduct of the petitioner No.1. Thereafter the

petitioners filed a transfer petition bearing TrP(Crl) No.04/2022 before

this Court for transfer of the application under Section 12 of the DV Act

from the Court of Chief Judicial Magistrate, Budgam, to the Court of

Judicial Magistrate, 1

st

Class, Pampore, on the ground that the parents of

the petitioner No.1 had requested her to come and reside with them at

Pampore. Vide order dated 25.04.2022, the learned Chief Judicial

Magistrate, Budgam, was directed to prepone the date of hearing in the

application and decide the issue of jurisdiction within fifteen days from

the date a copy of the order was made available to the learned Magistrate.

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11) Prior to the passing the order dated 25.04.2022, the parties had led

the evidence in support of their respective claims vis-à-vis territorial

jurisdiction of the Trial Court at Budgam. The petitioners examined the

petitioner No.1, Abdul Rashid Beigh and Parvaiz Ahmad Ellahi in

support of their claim whereas the respondents examined respondent

No.1, Bashir Ahmad Ganai, Manzoor Ahmad Joo and Zahoor Ahmad SI.

The learned trial court vide order dated 20.05.2022 dismissed the

application filed by the petitioners and after taking note of the dismissal of

the application filed by the petitioners, the transfer application preferred

by the petitioners was dismissed by this Court vide order dated

30.06.2022. The petitioners thereafter assailed the order dated 20.05.2022

passed by the learned trial court whereby the application filed by the

petitioners was dismissed on account of lack of territorial jurisdiction, by

way of an appeal and the learned Appellate Court vide order impugned

dated 30.09.2023 dismissed the appeal preferred by the petitioners.

Appreciation:

12) Learned counsel for the petitioners while assailing the orders

passed by the courts below strenuously submitted that assuming the trial

court was not having the territorial jurisdiction to entertain and try the

application, the application ought to have been returned to the petitioners

for its presentation before the court of competent jurisdiction.

13) Since learned counsel for the respondents has raised a preliminary

objection in respect of maintainability of the present petition under Article

227 of the Constituting of India, as such, this Court deems it proper to

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deal with the preliminary objections raised by Mr. Qayoom at the first

instance. It has been submitted by learned counsel for the respondents that

jurisdiction under Article 227 of the Constitution of India cannot be

invoked to correct the error of law or fact and it is only when the courts

subordinate to the High Court commit jurisdictional error that the High

Court can invoke the jurisdiction under Article 227 of the Constitution of

India to keep the courts subordinate to it within the bounds of their

jurisdiction.

14) The Hon’ble Supreme Court of India has dealt in detail the scope of

jurisdiction of High Court under article 227 of the Constitution of India to

interfere with the orders passed by the courts/tribunals subject to

superintendence and control of High Courts, in case titled Shalini Shyam

Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 and has laid down

the parameters for the High Court for exercising power under article 227

of the Constitution of India and the relevant paras are extracted as under:

49. On an analysis of the aforesaid decisions of this Court,

the following principles on the exercise of High Court's

jurisdiction under Article 227 of the Constitution may be

formulated:

(a) A petition under Article 226 of the Constitution is

different from a petition under Article 227. The mode of

exercise of power by the High Court under these two

articles is also different.

(b) In any event, a petition under Article 227 cannot be

called a writ petition. The history of the conferment of

writ jurisdiction on High Courts is substantially different

from the history of conferment of the power of

superintendence on the High Courts under Article 227

and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in

exercise of its power of superintendence under

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Article 227 of the Constitution, interfere with the

orders of tribunals or courts inferior to it. Nor can it,

in exercise of this power, act as a court of appeal over

the orders of the court or tribunal subordinate to it.

In cases where an alternative statutory mode of redressal

has been provided, that would also operate as a restrain

on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in

exercise of their power of superintendence have been

repeatedly laid down by this Court. In this regard the High

Court must be guided by the principles laid down by the

Constitution Bench of this Court in Waryam Singh [AIR

1954 SC 215] and the principles in Waryam Singh [AIR

1954 SC 215] have been repeatedly followed by

subsequent Constitution Benches and various other

decisions of this Court.

(e) According to the ratio in Waryam Singh [AIR 1954 SC

215] , followed in subsequent cases, the High Court in

exercise of its jurisdiction of superintendence can

interfere in order only to keep the tribunals and

courts subordinate to it, “within the bounds of their

authority”.

(f) In order to ensure that law is followed by such

tribunals and courts by exercising jurisdiction which

is vested in them and by not declining to exercise the

jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High

Court can interfere in exercise of its power of

superintendence when there has been a patent

perversity in the orders of the tribunals and courts

subordinate to it or where there has been a gross and

manifest failure of justice or the basic principles of

natural justice have been flouted.

(h) In exercise of its power of superintendence High Court

cannot interfere to correct mere errors of law or fact or

just because another view than the one taken by the

tribunals or courts subordinate to it, is a possible view. In

other words the jurisdiction has to be very sparingly

exercised.

(i) The High Court's power of superintendence under

Article 227 cannot be curtailed by any statute. It has been

declared a part of the basic structure of the Constitution

by the Constitution Bench of this Court in L. Chandra

Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S)

577] and therefore abridgment by a constitutional

amendment is also very doubtful.

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(j) It may be true that a statutory amendment of a rather

cognate provision, like Section 115 of the Civil Procedure

Code by the Civil Procedure Code (Amendment) Act, 1999

does not and cannot cut down the ambit of High Court's

power under Article 227. At the same time, it must be

remembered that such statutory amendment does not

correspondingly expand the High Court's jurisdiction of

superintendence under Article 227.

(k) The power is discretionary and has to be exercised on

equitable principle. In an appropriate case, the power can

be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered

power of the High Court under Article 227, it transpires

that the main object of this article is to keep strict

administrative and judicial control by the High Court on

the administration of justice within its territory.

(m) The object of superintendence, both administrative

and judicial, is to maintain efficiency, smooth and orderly

functioning of the entire machinery of justice in such a

way as it does not bring it into any disrepute. The power

of interference under this article is to be kept to the

minimum to ensure that the wheel of justice does not

come to a halt and the fountain of justice remains pure

and unpolluted in order to maintain public confidence in

the functioning of the tribunals and courts subordinate to

the High Court.

(n) This reserve and exceptional power of judicial

intervention is not to be exercised just for grant of

relief in individual cases but should be directed for

promotion of public confidence in the administration

of justice in the larger public interest whereas Article

226 is meant for protection of individual grievance.

Therefore, the power under Article 227 may be

unfettered but its exercise is subject to high degree of

judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will

be counterproductive and will divest this extraordinary

power of its strength and vitality.

15) From the above authoritative pronouncement of the Hon’ble

Supreme Court of India it is evident that High Court cannot act as

appellate court while exercising the jurisdiction under article 227 of the

Constitution of India and it can show indulgence only when there is

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manifest failure of justice or refusal on the part of the court to exercise

jurisdiction vested in it or where the court exceeds the jurisdiction. Such

jurisdiction is also to be exercised in public interest. In fact, the

constitutional duty has been cast upon the High Court to ensure that the

courts/tribunals subject to its superintendence and control, function within

the limits of their respective jurisdictions and in the event of any

jurisdictional infraction on their part, the High Court(s) can intervene

under Article 227 of the Constitution of India.

16) Now this Court would examine as to whether the learned trial court

has committed any jurisdictional error causing miscarriage of justice to

the petitioners or not.

17) The DV Act was enacted by the Parliament in the fifty-sixth year of

the Republic of India with avowed purpose to curb the domestic violence

and to provide protection to the aggrieved person. Taking into

consideration the object of the DV Act, a whole mechanism was put in

place in the Act (supra) so as to ensure that the aggrieved person does not

suffer rigmarole of trial under civil law as well as criminal law. In order to

achieve the salutary purpose for which the DV Act was enacted, the

Magistrate under the Act has been vested with wide powers not only to

issue final orders under Sections 18, 19, 20, 21 and 22 of the Act (supra)

but also to grant interim and ex-parte orders. Though Section 28 of the

DV Act provides that all proceedings under Sections 12, 18, 19, 20, 21, 22

and 23 and offences under Section 31 shall be governed by the provisions

of the Code of Criminal Procedure, 1973 but at the same time Section 28

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leaves the Court free to lay down its own procedure for disposal of an

application under Section 12 or under sub-section (2) of Section 23 of the

Act. This is deliberate departure from the normal procedural laws with

intention to achieve the object of the Act so as to ensure that the aggrieved

person does not get trapped in the intricacies of procedural laws. It casts

an obligation upon the courts under the Act to ensure that justice to the

aggrieved person does not itself become the victim of procedural laws.

18) It is true that under Section 27 of the DV Act, the aggrieved person

can approach the Magistrate of first class at a place where the aggrieved

person permanently or temporarily resides or carries on business or is

employed and at the same time Section 27 provides that any order made

under the Act shall be enforceable throughout India.

19) Now the moot question arises whether the Magistrate lacking the

territorial jurisdiction to entertain the application under Section 12 of the

DV Act can return the application to the aggrieved person for its

presentation before the Court having the territorial jurisdiction or not?

This Court in Khalid Amin Kohli Vs UT of J&K,2023 Live Law (JKL)

194, has already held that the proceedings under the DV Act are not

criminal proceedings. In Kamatchi v. Lakshmi Narayanan, (2022) 15

SCC 50, the Hon’ble Supreme Court of India also has observed that the

High Court wrongly equated filing of an application under Section 12 of

the Act to lodging of a complaint or initiation of prosecution.

20) Equally true is that the relief provided under the Act (supra) can be

sought by the aggrieved person even in suits and other legal proceedings

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before the Civil Court, Family Court or a Criminal Court. In the instant

case, the petitioners have not approached the Civil Court, Family Court or

Criminal Court but have chosen to approach the Magistrate independently

vested with the powers and jurisdiction under the DV Act. Though the

DV Act is absolutely silent in respect of the power of the Magistrate

lacking territorial jurisdiction to entertain and try the application under the

DV Act, to return the application to the aggrieved person for its

presentation before the court having the territorial jurisdiction to

adjudicate the same but Section 28 of the said Act, as mentioned above,

permits the Magistrate to lay down its own procedure for disposal of an

application under Section 12 or under sub-section (2) of Section 23 of the

Act (supra).

21) Even in the Code of Criminal Procedure, prior to taking of

cognizance, the Magistrate, who does not have the jurisdiction to entertain

the complaint, can return the complaint to the complainant for its

presentation before the Court of competent jurisdiction under Section 201

of the Criminal Procedure Code. Under Order 7 Rule 10 CPC, the Civil

Court can return the plaint for its presentation before the court of

competent jurisdiction.

22) It is true that there is no provision in the DV Act to return the

application to the aggrieved person for its presentation before the court of

competent jurisdiction but once the Civil Courts and Criminal Courts

have been vested with power to return the complaint or suit, as the case

may be, to the plaintiff(s)/complainant(s), then it would be a travesty of

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justice if the provisions of the DV Act are interpreted in manner that the

Court exercising the jurisdiction under the DV Act lacks the power to

return the application for its presentation before the court of competent

jurisdiction on account of lack of territorial jurisdiction to entertain and

try the application, more particularly in view of subsection (2) of Section

28 of the DV Act. The dismissal of the application under the DV Act on

the ground of lack of territorial jurisdiction would defeat the very purpose

of expeditious disposal of the proceedings under the DV Act as mandated

under sub-section (5) of Section 12 of the said Act (supra). It is settled

law that the provisions of the DV Act are to be interpreted and applied in

a manner so as to advance the cause of justice meaning thereby which

achieves the purpose for which the law has been put into place and not in

a manner which defeats the very purpose, soul and spirit of the Act. The

Hon’ble Supreme Court in Vaishali Abhimanyu Joshi v. Nanasaheb

Gopal Joshi, (2017) 14 SCC 373, has observed that interpretation of the

Act should be in a manner to effectuate its object and purpose.

23) This Court is of the considered view that in the instant case even if

the trial court had lacked the territorial jurisdiction, the application ought

to have been returned to the petitioners for its presentation before the

court having the territorial jurisdiction. The failure on the part of learned

trial court to return the application to the petitioners for its presentation

before the court of competent jurisdiction shall fall within the meaning of

‘jurisdictional error’ and, as such, amenable to the jurisdiction of this

Court under Article 227 of the Constitution of India.

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24) This Court would also like to observe that the mode and manner in

which the proceedings have been dealt with by the learned trial court as

also by the learned Appellate Court is not in accordance with the spirit of

the Act. The learned trial court has decided the issue of jurisdiction by

returning a finding that the rent agreement was in fact an outcome of

afterthought and while returning this finding, the trial court has observed

that the date of issuance of the stamp paper is 26.12.2019 whereas the rent

deed has been executed on 23.06.2020 and as per rules, all stamp papers

expire on 31

st

March of every year and un-used stamps are to be deposited

back into the treasury and, as such, there was no occasion to draft the rent

deed on an expired stamp paper. The observations and the finding

returned are contrary to the judgment of the Hon’ble Supreme Court in

Thiruvengadam Pillai v. Navaneethammal, (2008) 4 SCC 530, wherein

it has been held as under:

Re: Question (i)

11. The trial court and the High Court have doubted the

genuineness of the agreement dated 5-1-1980 because it was

written on two stamp papers purchased on 25-8-1973 and 7-

8-1978. The learned counsel for the first respondent

submitted that apart from raising a doubt about the

authenticity of the document, the use of such old stamp

papers invalidated the agreement itself for two reasons.

Firstly, it was illegal to use stamp papers purchased on

different dates for execution of a document. Secondly, as

the stamp papers used in the agreement of sale were

more than six months old, they were not valid stamp

papers and consequently, the agreement prepared on

such “expired” papers was also not valid. We will deal

with the second contention first. The Stamp Act, 1899

nowhere prescribes any expiry date for use of a stamp

paper. Section 54 merely provides that a person

possessing a stamp paper for which he has no immediate

use (which is not spoiled or rendered unfit or useless),

can seek refund of the value thereof by surrendering

such stamp paper to the Collector provided it was

purchased within the period of six months next preceding

the date on which it was so surrendered. The stipulation

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of the period of six months prescribed in Section 54 is

only for the purpose of seeking refund of the value of the

unused stamp paper, and not for use of the stamp paper.

Section 54 does not require the person who has

purchased a stamp paper, to use it within six months.

Therefore, there is no impediment for a stamp paper

purchased more than six months prior to the proposed

date of execution, being used for a document.

25) The learned Appellate Court instead of rectifying the error

committed by the learned trial court has gone a step further by returning a

finding that the person who executed the rent deed in favour of the

petitioner No.1 was not competent to do so as he was not the owner of the

property. It needs to be noted that the Appellate Court was not deciding

the title suit but was only required to examine the validity of the order

passed by the trial court. The Appellate Court has rejected the rent

agreement also on the ground that it was not exhibited by the party. Once

the document was admitted by PW Parvaiz Ellahi to have been executed

by him, there was no occasion for the learned Appellate Court to reject the

document solely on the ground that the same was not exhibited. Once the

contents of the document are proved, the document has to be admitted in

evidence and merely non-exhibiting the document would not make the

document inadmissible in evidence once its contents are proved. Reliance

is placed upon the decision of the Apex Court in Narbada Devi Gupta v.

Birendra Kumar Jaiswal, (2003) 8 SCC 745, wherein it has been held as

under:

16. Reliance is heavily placed on behalf of the appellant on the case

of Ramji Dayawala& Sons (P) Ltd. [(1981) 1 SCC 80] The legal position

is not in dispute that mere production and marking of a

document as exhibit by the court cannot be held to be a due

proof of its contents. Its execution has to be proved by

admissible evidence, that is, by the “evidence of those persons

who can vouchsafe for the truth of the facts in issue” . The

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situation is, however, different where the documents are produced,

they are admitted by the opposite party, signatures on them are also

admitted and they are marked thereafter as exhibits by the court. We

find no force in the argument advanced on behalf of the appellant

that as the mark of exhibits has been put on the back portions of the

rent receipts near the place where the admitted signatures of the

plaintiff appear, the rent receipts as a whole cannot be treated to

have been exhibited as admitted documents.

26) Though this Court is not upsetting the impugned orders on the

errors mentioned above but at the same time deemed it proper to take note

of the errors committed by both the courts below.

Conclusion

27) In view of above, this Court finds it a fit case for invoking the

powers under Article 227 of the Constitution of India to set aside the

impugned orders. Accordingly, both the impugned orders dated

30.09.2023 passed by the learned Additional Sessions Judge, Budgam and

20.05.2022 passed by the Court of learned Chief Judicial Magistrate,

Budgam, are set aside and the learned Chief Judicial Magistrate, Budgam

is directed to return the application of the petitioners for presenting the

same before the court having the territorial jurisdiction to adjudicate the

matter.

28) Disposed of as above.

29) Copy of this order be sent to the learned trial court for information

and compliance.

(Rajnesh Oswal)

Judge

SRINAGAR

29.03.2024

“Bhat Altaf-Secy”

Whether the order is reportable: Yes