Back
2007 Supreme(J&K) 120
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mansoor Ahmad Mir, J.
Farooq Ahmad Shah - Appellant
Versus
Gh. Mustafa Hajini & Ors. - Respondent
Civil Revision No. 163/2006
Decided On : 10 July, 2007
Advocate For Appellant: Mohd. Sultan
Advocate For Respondent: Mohd. Amin Khan
The central legal point established is the requirement to adhere to the procedures and provisions of the Civil Procedure Code in appellate proceedings.
Headnote:
Civil Procedure Code - Appeal - Setting aside impugned order and directing appellate court to decide the appeal afresh
Fact of the Case:
Ghulam Mustafa Hajini filed a suit seeking to restrain defendants from raising construction on the suit land. The trial court passed a status-quo order, which was appealed by defendant Farooq Ahmad Shah. The appellate court disposed of the suit without following the mandate of law.
Finding of the Court:
The appellate court's order was deemed illegal and an abuse of process of law. The court set aside the impugned order and directed the appellate court to decide the appeal afresh in accordance with the provisions of the Civil Procedure Code.
Issues: The main issue was the legality of the appellate court's order and the proper application of the Civil Procedure Code.
Ratio Decidendi: The court emphasized that the appellate court had ignored the procedures and passed an illegal order. It highlighted the need to follow the mandate of the Civil Procedure Code and set aside the impugned order.
Final Decision: The revision petition was disposed of, and the appellate court was directed to decide the appeal afresh within a specified period, while the parties were directed to appear before the appellate court on a specific date.
2. It is necessary to notice the facts of the case briefly herein:
Ghulam Mustafa Hajini-respondent No.1 filed a suit in the court of First Civil Subordinate (Sub-Judge), Srinagar, with the prayer that defendants 1 and 2-Abdul Majid Dar and Farooq Ahmad Shah be restrained from raising any sort of construction in the suit land with further direction to respondents not to grant any building permission/sanction in their favour. Trial court passed status-quo order vide order dated 12th August, 2006-came to be assailed by defendant No.2-Farooq Ahmad Shah by the medium of appeal before 3rd Additional District Judge, Srinagar. The said court passed the impugned order.
3. Feeling aggrieved, defendant No.2-Farooq Ahmad Shah has preferred this revision petition.
4. It appears that learned counsel for the parties had made a joint request before the appellate court for demarcation/identification of the suit land. Appellate court in terms of the submission made disposed of the suit without following the mandate of law.
5. The appellate court has given a slip to law while ignoring all the procedures. A suit can be dismissed/decreed after recording evidence or on a preliminary issue. The suit can also be decree by way of compromise but compromise must be in writing and signed by the parties in terms of Order 23 of Civil Procedure Code and must be lawful. Surprisingly, the appellate court has passed the impugned order which is illegal on the face of it and is an abuse of process of law.
6. Accordingly, I deem it proper to set-aside the impugned order and direct the appellate court to decide the appeal afresh in terms of the provisions applicable and while keeping in view the mandate of Civil Procedure Code.
7. Order accordingly. The appellate Court is directed to decide the appeal afresh within a period of one month from today.
8. Parties are directed to appear before the appellate court on 18th day of July, 2007. Registry is directed send down the record along with a copy of this order. Revision petition disposed of.
