JUDGMENT
Mansoor Ahmad Mir, J.
1. This order will govern the three revision petitions bearing Nos. 12/2003, 13/2003 and 14/2003 presented by Mr. Z. A. Shah. These revision petitions are against the order of learned Additional District Judge, Srinagar dated 31st October, 2001, whereby the application presented by the defendant/petitioner herein for staying the proceedings in terms of the Jammu and Kashmir Migrant (Stay of Proceedings) Act 1997 (hereinafter referred as Act) stands rejected.
2. Aggrieved by the said order, the petitioner herein has challenged the said order on the grounds taken in the revision petition. The main ground is that respondent Krishan Rao has not migrated after 1989 but has shifted his main office of business out of Jammu and Kashmir State prior to the year 1985.
3. The petitioner stands recognized as migrant and accordingly, petitioner moved an application for staying the proceedings against the petitioner and other defendants. That both the parties are not migrants in terms of Jammu & Kashmir Migrants (Stay of Proceedings) Act and the proceedings are to be stayed.
4. Mr. Shah, while addressing arguments argued that since the plain-tiff/respondent No. 1 has died and Raman Rao stand arrayed as party. And the question is whether Raman Rao is migrant or not? Thus in terms of the change of circumstances, the trial court has to determine, whether Raman Rao is migrant or not. Further he argued that the impugned order is illegal. Mr. Jan while rebutting the arguments argued that revision petition is not maintainable because the impugned order does not fall within the definition of ‘cases decided’. Further, he argued that the trial court has come to the conclusion that both the parties are migrants, so in terms of Section 3 of the Act, the proceedings cannot be stayed. Mr. Shah argued that staying of proceedings in terms of the Act is a statutory right. If a person is denied that right, it falls within the definition of ‘cases decided’.
5. Considered. It appears that during the pendency of the revision petition respondent Krishan Rao has died and one Raman Rao stands substituted as a legal heir in terms of the order passed by Lord Chief Justice dated 13th July, 2004. It is profitable to thrash out the preliminary objection raised by Mr. Jan at the first instance.
6. In terms of provisions of Section 115 CPC only that order can be assailed which ‘decide the case’. The ‘deciding of case’ to me does not men finally disposing of the case but includes that if a right of a party is decided in terms of any order that also falls within the definition of ‘case decided’. It is profitable to reproduce relevant Para of the judgment of our own High court reported in AIR 1977 J&K page 38 (Badri Nath Gupta (petitioner) v. Estates Officer, Controller of Aerodromes (respondent) herein:-
“The term ‘case decided’ is not confined to the decision of the case as a whole but would also include part of a case which decides a substantial question in controversy between the parties. The touchstone, therefore, would be to find out if the order under revision has determined some right or claim between the parties which is legally enforceable. If it has, it would be a ‘case decided’ and jurisdiction under Section 115, Civil P.C. may be invoked but if it does not decide any suchy substantial right or question it will only remain an interim order and would not amount to a “case decided” i.e. no revision would lie against orders adjourning the case; fixing some date or asking for better particulars etc.”
7. In terms of this judgment, it has been held that ‘case decided’ is not confined to the decision of the case as a whole but would also include part of a case which decides a substantial question in controversy between the parties.
8. While applying the test to the instant case, the question, whether the proceedings are to be stayed in terms of the Act or otherwise is a substantial question. Thus a right of a party is to be determined. Thus preliminary objection fails.
9. Now coming to the merits of the case. It is profitable to reproduce relevant proviso of Section 3 of J&K Migrants (Stay of Proceedings) Act herein.
“Nothing in Section 3 shall apply to a dispute relating to the recovery of money or immovable property interse migrants.”
10. The learned Additional District Judge after perusing and considering the record has held that both parties are migrants, hence Section 3 of the Act is not applicable and the proceedings cannot be stayed. This is finding of a fact. It appears the trial court has not committed any error. Thus the order is legal one.
11. It is moot question whether Raman Rao is a migrant or not and whether the proceedings are to be stayed or not? I think the argument of Mr. Shah has force. Mr. Shah is at liberty to seek appropriate remedy before the court below. The finding of this court as well as finding of the learned Additional District Judge shall not come in the way.
12. Keeping in view the above discussion, the court below has not committed any illegality and the impugned order, is legal one and, has not caused any miscarriage of justice.
13. Viewed thus the revision petitions are dismissed. Send down the record. Parties are directed to cause appearance before the court below on 10th March, 2005.