SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Audio Icon Pause Audio Icon
judgment-img

2000 Supreme(J&K) 118

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
G.D. Sharma, J.
Mohd. Shafi Shah & Ors. - Appellant
Versus
Oriental Textiles Corp. & Ors. - Respondent
Civil Revision Petition No. 17/2000
Decided On : 02 June, 2000

Advocates Appeared:
Advocate For Appellant: M.A. Qayoom
Advocate For Respondent: R.A. Jan

The main legal point established in the judgment is the interpretation of the court's inherent jurisdiction to issue temporary injunctions in circumstances not covered by the provisions of Order 39 CPC, emphasizing the duty of the court to do justice between the parties before it.

Headnote:

Injunction - Jurisdiction - Section 94, Order 39 Rule 1 and Section 151 CPC - [Section 94, Order 39 Rule 1, Section 151 CPC] - The court discussed the application of section 94 read with Order 39 Rule 1 and section 151 CPC in the context of issuing a temporary injunction. It considered the inherent jurisdiction of the court to issue temporary injunctions in circumstances not covered by the provisions of Order 39 CPC, emphasizing the duty of the court to do justice between the parties before it. The court referred to relevant case law to support its interpretation of the legal provisions and concluded that the impugned order was passed by the trial court in its exercise vested under law to preserve the suit property, not under the provisions of Order 39 Rule 1 CPC. The revision petition was dismissed, and the trial court was directed to decide the restoration application in accordance with law.

Fact of the Case:

The respondents filed an application for a temporary injunction to restrain the petitioners from damaging or alienating the suit property. The petitioners challenged the order on the grounds of jurisdiction and lack of notice. The court considered the circumstances under which the impugned order was passed and the subsequent actions of the parties.

Finding of the Court:

The court found that the impugned order was passed by the trial court in its exercise vested under law to preserve the suit property and not under the provisions of Order 39 Rule 1 CPC. The revision petition was dismissed, and the trial court was directed to decide the restoration application in accordance with law.

Issues: The issues included the jurisdiction of the trial court to issue the temporary injunction, the lack of notice to the petitioners, and the expiration of the impugned order.

Ratio Decidendi: The court's decision was based on the finding that the impugned order was passed by the trial court in its exercise vested under law to preserve the suit property and not under the provisions of Order 39 Rule 1 CPC.

Final Decision: The revision petition was dismissed, and the trial court was directed to decide the restoration application in accordance with law.

1. This revision petition is directed against the order dated: 25-03-2000 passed by the learned City Judge, Srinagar whereby the petitioners herein were restrained from damaging or alienating the suit property in any form till next date of hearing i.e. 4-4-2000. Notices were issued to the petitioners herein to show cause why the order be not made absolute pending consideration on the application for restoration of the suit to its original number which was dismissed in default. This order was passed in application made by the respondents herein before the trial court purporated to be made under section 94 read with Order 39 Rule 1 and section 151 CPC. The relevant facts of the case in brief are that petitioners herein had filed the suit on K-half of the owner of the demised premises namely K.V. Pestonji for ejectment of the respondents and was pending disposal in the court of learned District Judge, Srinagar. The respondents herein had also filed a suit for perpetual injunction against the petitioners herein. Vide order dated 13-6-1998, the District Judge had ordered the trial of both these suits together. The averments made in the above said application are that vide order dated: 17-3-1999, the learned District Judge behind the back of the respondents transferred tie case of perpetual injunction for trial to the com of City Judge, Srinagar. As the respondents had no knowledge of the pendency of the case to the transferee court (trial court) so they could not enter appearance on the dates fixed for hearing Resultantly, the suit was dismissed in default on 25-9-1999. When the respondents came to know about the dismissal of the suit, they on 24-11-1999 filed the application for its restoration which was accompanied by an application made under section 5 of the Limitation Act, whereunder the delay in filing the said application was prayed to be condoned. The petitioners were served with the notices, and they filed their objections on 11-12-1999. The case was fixed for arguments, which were heard on the same day and the case was posted for orders on 24-12-1999. From 24-12-1999, the case was adjourned to 25-02-2000. The order could not be drawn on that day because of abnormal law and order situation prevailing in the Valley, and the case was adjourned for 4-4-2000. The parties were present on 4-4-2000 and the trial court again recorded in the minutes of the proceedings that because of abnormal prevailing disturbed conditions, the order could not be passed. The next date fixed in the case was 6-5-2000. The respondents apprehended mischief to the demised property and on 25-3-2000 the above said application was made with the allegations that the petitioners herein had set in the process of demolition of the adjoining building giving rise to the apprehension that it was a play employed to dispossess the respondents from the demised premises after getting them razed to the ground. It was contended that the respondents being tenants had statutory right of protection from being evicted without following the prescribed procedure under the J&K Houses and Shops Rent Control Act. That proceeding had to stay under the provisions of the J&K Migrant Immovable Property (Preservation, Protection and Restraint) on Distress Sales Act, 1997. Then right to hold the demised premises peacefully was being threatened so they sought the protection of the Court. On the existence of these peculiar circumstances the trial court dispensed with the service of notice to the petitioners and passed the impugned order. To the show cause notice, the petitioners herein appeared on 4-4-2000. On this date, no proceedings could be initiated because of general strike being observed. In the presence of the parties, the case was adjourned for 6-5-2000 and the operation of the impugned order was extended upto that date. The petitioners herein instead of showing cause to the show cause notice challenged the order on 1-6-2000 by filing this revision petition. The order has bee


















Click Here to Read the rest of this document

1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
logo-black

An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers

Please visit our Training & Support
Center or Contact Us for assistance

qr

Scan Me!

India’s Legal research and Law Firm App, Download now!

For Daily Legal Updates, Join us on :

whatsapp-icon Back to top