University Of Kashmir v. Ghulam Nabir Mir

Mian Jalal-ud-din J.

(1) This appeal is directed against the judg­ment and decree of the Sub Judge (Judge, Small Causes Court) Srinagar dated 24-7-1974 dismissing the suit of the plaintiff for recovery of Rs. 16500.00.

(2) The facts that have led to this appeal are as follows:-

There is an orchard known as Shri Amar Singh Orchard situate in Naseem Bagh Srinagir. The defendant respondent purchased the fruit and the grass of the said orchard for the years 1962-63 for a consideration of Rs. 30, 832 which was payable by installments as under:-

(a) Rs. 6882.00 at the time of execution of the argument.

(b) Rs. 7.000/- on or before 1st July, 1962

(c) Rs. 6,000/- on or before 1st October, 1962

(d) Rs. 7.000/- on or before 15th April, 1962

(e) Rs. 4.000/- on or before 1st July, 1963.

(3) The parties to the deal entered into an agreement which was executed on 14-4-1962. The defendant paid the first installment of Rs f-,883/-at the time of the execution of the agreement and also paid another installment of Rs. 7,000/- on 1st July, 1972. The rest of the installments amounting to Rs. 17000/- were not paid by him inspite of the demand made by the University in this behalf. This led the University to invite fresh tenders for the sale of the crop of the orchard for the year 1963 under clause 7 of the agreement. The defendant thereupon brought a suit against the University in the court of the Sub Judge (A. D. M/ C. J. M) Srinagar and got a temporary injunction restraining the University from interfering with the defendant in taking the fruits and grass of the orchard. The University, however, raised an objection that the defendant should be ordered to deposit the installment Rs. 3,000/- in the court which had become due% by them to the University. The matter, however, went in appeal before the Additional District Judge, Srinagar, who after hearing the appeal ordered that the matters in dispute between the parties should be referred to the Vice chancellor of the University in pursuance of clause 18 of the agreement. Conse­quently the dispute between the University and the defendant was referred to the Vice Chancellor, the arbitrator designate for his adjudication. The then Vice Chancellor Shri K. M. Panikkar gave his award on 7-6-1963 He held that the defendant should pay Rs. 13000.00 to the University. He further held that he was not entitled to any compensation and if however, there was any compensation due to the defendant that would be credited at the time when the last installment would become due. The arbitrator submitted the award to the court of Sub Judge (C. J. M.) Srinagar. The court however, dismissed the suit for injunction in default of the appearance of the plaintiff in that case. Meanwhile the defendant received and obtained the usufruct of the orchard for the year 1963. As the suit had been dismissed the award was not made rule of the court. Afterwards the parties to the award did not press this point. Mr. M. A. Chisti the then Dy. Registerar' University of Kashmir brought the present suit for recovery of Rs. 16,5000/- against the defendant. The suit money represents the amount of installment s that had fallen due to the University. The suit was resisted by the defendant, on several grounds among others that the award made by the Vice Chancellor had not been correctly made: the suit was not maintainable and was also time barred; that the-suit was filed by an unauthorised person. The defendant also took a preliminary objection that he was an agriculturist and the case was therefore? triable under the Agriculturists Relief Act. It may be stated that the suit was originally brought in the court of Addl. District Judge, Srinagar, who framed the preliminary issue as regards the status of the defendant. The court of Addl. District Judge held that the defendant was an agri­culturist and that the suit was therefore triable under the Agriculturists Relief Act. The plaint was ret­urned to the plaintiff for presenting the same before a proper forum: The plaint was presented by the plaintiff before the special Sub Judge (J. S. C. C) Srinagar on 24-9-70. The trial concluded in that court which found that the suit had been brought by an incompetent person who had no locus standi to bring the suit. The suit should have been brought by the University of Kashmir and not by Shri M. A. Chisti the Dy. Registrar Kashmir University. The learned Judge also held that the suit was not maintainable as the plaintiff wanted to enforce the award which was not permissible as no suit could lie under section 32 of the Arbitration Act after the award was made by the Arbitrator. The suit of the plaintiff was consequently thrown out. The present appeal has not been filed by the original plaintiff Shri M. A. Chisti (Dy. Registrar) but by the Uni­versity of Kashmir itself.

(4) A preliminary objection has been raised by the counsel for the respondent that the appeal is not competent in-as-much-as it has been preferred by an unauthorised person against whom there is no judgment and decree of the trial court The University of Kashmir which is the appellant before us is not the person aggrieved as it did not figure a all in the plaint. In other words the argument is that the judgment and decree of the court below was passed against Mr. M. A. Chisti the Dy. Registrar of Jammu and Kashmir University and not against University of Kashmir, therefore there being no decree against the University of Kashmir (which was not a party to the suit) no appeal could be preferred by the University against the judgment and decree of the trial court;

(5) We heard the counsel for the parties on the preliminary objection and also allowed them to address us on the merits on the appeal as well.

(6) Appearing for the appellant Shri J. N. Bhan has urged that the University of Kashmir is the rightful person to bring the present appeal in-as-much-as it was the University which had brought the suit against the defendant. Attention is invited to para (1) of the plaint according to which the Dy. Registrar of the University has been authorised by the University to institute the suit. It is submitted that the suit in essence is on behalf of the University and not by the Dy. Registrar thereof.

(7) The University is a corporate body and in the matter of institution of suit is governed in the matter of procedure by Order 29 of the Code of Civil Procedure. Reliance is placed on rule 1 and 2 of Order 29 which authorises the Secretary or Manager of a Corporation to sign and verify plaint. It is pointed out that the plaint has been signed and verified by the Dy. Registrar in accordance with the provisions of the aforesaid rule. Mr. Bhan has further urged that the suit in the present form is maintainable notwithstanding the award made by the arbitrator resolving the disputes between the parties. It is urged that the suit is based on the award which furnishes cause of action to the plain­tiff. Cause of action to file the suit in respect of the amount claimed arose after the award was made. It is further urged that the bifurcation of the Uni­versity into two wings would not affect the position and the claim of Kashmir University to the assets of the University has been guaranteed and safe­guarded, under section 34 of the New Act of 1969.

(8) On careful consideration of the matter I am of the view that the preliminary objection raised by the respondent has got force and must therefore prevail. At the time when the suit was brought it was the Act No. 1 of 1948 i. e. The Jammu and Kashmir University Act of 2005 Bk. (1948 AD) (hereinafter to be referred as the 'old Act') that was in force. Section 3 clause (2) of that Act provides that the University of Jammu and Kashmir shall have a common seal and shall sue and be used by the said name. According to this Section the suit is required to be brought in the name of 'the Uni­versity of Jammu and Kashmir'. Just as according to Section 79 of the Code of Civil Procedure a Civil suit brought by or against the State Government is to be in the name of 'the State of Jammu and Kashmir' in the same way section 3(2) of the Old Act provided that a suit by the University or against the University shall be in the name of the University of Jammu and Kashmir. In the instant case we find that the suit has been brought in the name of M. A. Chisti Dy. Registrar of the University of Jammu and Kashmir. It is true that in para 1 of the plaint it is mentioned that the Dy. Registrar has brought the suit on behalf of the University but that is not what the law requires to State in the plaint. The suit should have been brought in the name of the Jammu and Kashmir University and not by its Dy Registrar. Of course the Registrar or Dy. Registrar of the University to whom the power was delegated could sign and verify the plaint. That would be in accordance with the provisions of Order 23 C. P. C, But the signing and verification of the plaint is different from the title of the suit As held in A.I.R. 1954 J and K 45 order 29 R. 1 does not authorise the person mentioned therein to institute a suit on behalf of the corporation. It merely authorises that person to sign and verify the plaint on behalf of the Corporation. The presen­tation of the plaint has to be done by a party in person or by a recognised agent appearing or acting as the case may be on his behalf. Signing and veri­fication of the plaint is different from filing the suit by a competent person. To illustrate this just as a Suit by or against the Government of the State cannot be in the name of 'the Secretary General', Chief Secretary, 'the Governor' but only in the name of 'the State of Jammu and Kashmir', in the same way no suit can be filed by or against the University in the name of some authorised of­ficer of the University say Registrar or Dy. Regis­trar. The suit must be in the name of the University itself.

(9) I agree with the trial judge that the suit was not instituted by the proper person. The plaintiff should have very well sought amendment of the plaint at the appropriate time, but unfortunately this was not done. The suit, it is found, was not instituted by competent person.

(10) There is yet another important matter to be taken notice of. When the defendant was found an agriculturist by the District Judge and the plaint was returned by him for presenting it before a proper forum, the plaint was presented before the Special Sub Judge on 24-9-70 At that time a New Act namely, the University of Kashmir Act of 1969 (hereinafter to be referred as 'the New Act') had come into force. The Jammu and Kashmir Univer­sity was bifurcated. The new Act of 1969 replaced the old Act of 1948, According to section of the New Act the University of Kashmir is a corporate body to be known by the name of 'the University of Kashmir' having a common seal. It can sue or be sued by its Corporate name as aforesaid. Thus under the new Act it is the University of Kashmir that is competent to bring the suit. In the ap­plication filed before the special Judge the suit again was not brought in the name of right person i. e. the University of Kashmir as required after the bifurcation of Jammu and Kashmir University. The title of the suit is the same as shown in the original plaint i. e. "Deputy Registrar of the Uni­versity of Jammu and Kashmir." It is quite mani­fest that at the time when the plaint was presented before the special Judge, the old University did not exit. Therefore the frame of the suit was wrong and the plaintiff was wrongly described in the plaint. This has resulted in another complicacy. The suit has been decided against the plaintiff who is Mr. M. A. Chisti Dy. Registrar of Jammu and Kashmir University and the judgment and decree is against this plaintiff The present appeal has, however, been brought not by the plaintiff who fig­ured in the suit but by the University of Kashmir, which is in my opinion, is not the proper person to file the appeal as no judgment or decree is against the University as such. The appeal, therefore, is not by competent person.

(11) Adverting to another aspect of the case the plaintiff in the suit seeks enforcement of the award. It is common ground that the matter in dispute was referred to the Vice-Chancellor as arbitrator who gave his award which also covers the point relating to the payment of installments. In the award there is a direction to the defendants to pay Rs. 13000/- which represents the amount of installment which had fallen due by then. The remedy of the University was to approach the civil court and ask it to make the award rule of the court. This was not done. On the other hand a separate suit has been brought. Section 32 clearly operates as a bar to the institution of the suit in respect of the award. The present suit involves the determination of question regarding the effect of the award. In section 32 the 'expression effect of the award" also means the determination of the question with regards to enforcement of the award. This according to section 32 is clearly barred and the suit is rendered not maintainable. There is a catena of authorities for the proposition that no suit can lie for the enforce­ment of award as the same is barred under section 32 of the Arbitration Act. In this connection I may quote A. I, R. 1559 Raj. 182, A. I. R. 1965 Pat. 239 and A. I. R. 1959 MP 2115, The ratio of these authorities is that where a dispute between the parties has culminated in the award, the original cause of action is extinguished and a separate suit is not maintainable. Reliance is, however, placed by the learned counsel for the appellant on AIR 195l Pat, 19 (e) but this cannot help him because the autho­rity does not lay down the proposition that an award can be enforced by means of instituting a suit. This authority simply lay down that an award can suc­cessfully be pleaded by way of defence to a suit.

(12) For the foregoing reasons I am of the view that the suit of the plaintiff for the enforce­ment of the award cannot lie.

(13) It is, however, worthy of consideration that in the award there is a direction to the defendant to pay Rs 13000 to the University. This amount represents the two installment s that fell due on 1st July 1962 and on 1st Oct. 1962. The award covers only these two items. There is no mention in the award of Rs. 4000/- the last installment that fell due on July 1963 So, far an amount of Rs. 13000/-the suit is barred u/s 32 of the Limitation Act. But as amount of Rs. 4000/- is not the subject matter of the award, therefore University could maintain the suit in respect of this amount because the cause of action for enforcing this claim arose after the award was made and this item is not covered in the award. But as the suit was brought in the name of wrong person and amendment was not sought in time it is doubtful if the appellant can success­fully maintain the suit in respect of this amount.

(14) The result is that the appeal fails which is hereby dismissed. The appellant may however, pursue his remedy in respect of recovery of Rs. 4000/-if that is otherwise available to him under the law.

Sd/-Mian Jalaluddin J.

I agree Sd/ Ghulam Mohamed Mir J.