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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Gh. Mohammad Mir, J.
Naba Waza & Ors. - Appellant
Versus
Gh. Mohi-ud-Din Dar & Ors. - Respondent
Civil Revision No. 81/1976
Decided On : 31 December, 1976
CIVIL PROCEDURE CODE - SECTION 115 - REVISION - INTERLOCUTORY ORDER - JURISDICTION - ILLEGALITY OR MATERIAL IRREGULARITY - EVIDENCE - APPRECIATION - ERROR OF LAW - JURISDICTIONAL ERROR - STAY ORDER - KNOWLEDGE - RESTORATION OF STATUS QUO ANTE.
Fact of the Case:
In a suit for declaration and permanent injunction, a temporary injunction was issued against the defendants-petitioners directing them not to cause any interference in the possession of the plaintiffs-respondents. An application was presented by the Plaintiffs in the trial court submitting that the defendants had obstructed the pathway by raising a Pacharbandi on it. The trial court issued notice to the other side, who submitted objections and affidavits. The trial court found that the defendants had erected the Pacharbandi after the institution of the suit and directed them to remove it. The defendants filed an appeal, which was dismissed by the lower appellate court. The defendants filed a revision petition in the High Court.
Finding of the Court:
The High Court held that the trial court and the lower appellate court had not committed any illegality or material irregularity in deciding the question of whether the Pacharbandi was in existence at the time of the institution of the suit. The court held that the trial court had considered the evidence on record and arrived at a conclusion on the basis of that evidence. The court also held that the trial court was not bound to stay its hands and sit tight over its order merely because an intimation of filing a revision petition against its orders and impending stay order was conveyed to it verbally. The court further held that the trial court was not bound to order restoration of the Pacharbandi to the position as it was before the issue of stay order by the High Court, as no stay order was brought to the trial court's notice.
Issues: 1. Whether the trial court and the lower appellate court had committed any illegality or material irregularity in deciding the question of whether the Pacharbandi was in existence at the time of the institution of the suit? 2. Whether the trial court was bound to stay its hands and sit tight over its order merely because an intimation of filing a revision petition against its orders and impending stay order was conveyed to it verbally? 3. Whether the trial court was bound to order restoration of the Pacharbandi to the position as it was before the issue of stay order by the High Court?
Ratio Decidendi: 1. The trial court and the lower appellate court had considered the evidence on record and arrived at a conclusion on the basis of that evidence. The trial court had not committed any illegality or material irregularity in deciding the question of whether the Pacharbandi was in existence at the time of the institution of the suit. 2. The trial court was not bound to stay its hands and sit tight over its order merely because an intimation of filing a revision petition against its orders and impending stay order was conveyed to it verbally. 3. The trial court was not bound to order restoration of the Pacharbandi to the position as it was before the issue of stay order by the High Court, as no stay order was brought to the trial court's notice.
Final Decision: The revision petition was rejected.
2. The learned counsel for the petitioners has argued that the trial Judge as well as the lower appellate court have both erred in deciding the question as to whether the Pacharbandi was in existence at the time of the institution of the suit or not. His submission was that question has been decided without recording any evidence and that he has not been given a fair chance to prove that the Pacharbandi was in existence long before the suit. He has further submitted that the trial court even after having been informed that the revision has been filed in the High Court refused to stay the proceedings and when the said order from the High Court was taken to the trial court, it again refused to restore the position on spot as it existed before the stay order was issued.
3. On the other hand the learned counsel for the respondent submitted that the learned trial judge or for that matter the learned District Judge have committed no mistake or error in law as the orders, they made, have been passed after hearing both the sides. He further submitted that the impugned order not being the final order, no revision under section 115 C. P. C. was maintainable. According to him the matter has been decided on sufficient material on record and that there was as such no question of the matter having been decided without any evidence.
4. From the perusal of the record it appears that the plaintiffs-respondents in their plaint had claimed that they possessed the right of user on the dispute land from more than three decades and that the defendants without any rhyme or reason were trying to interfere in their use of the pathway. There was no mention in the plaint of any Pacharbandi having been erected by the defendants or by
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