The court highlighted the significance of addressing the maintainability of the suit and the need for an undertaking from the plaintiff regarding demolition if the suit fails.

1. This revision petition has been filed by the petitioners against the order of 3rd Additional District Judge, Srinagar, who vide his order dated 02.11.2006 set-aside the order of the trial court dated 3rd of March, 2005.

2. That the plaintiff/respondent filed a suit seeking declaration to the extent that she is entitled to raise construction of five storey shopping cum commercial complex in accordance with the revised site plan submitted by her on the ground of deemed permission/ sanction as provided in Section 7(iii) of the Jammu and Kashmir Control of Building Operation and Revised Regulations Act 2001 and further a decree of perpetual injunction restraining the defendants from causing any interference into construction activities undertaken by the plaintiff in accordance with the said site plan. An application for temporary injunction was also filed.

3. The brief facts of the case are that vide building permission order No. 571 of 2002 dated 3rd of January, 2002, the plaintiff was granted building permission for construction of double storey shopping complex at Gogjibagh, Srinagar on a plot of land comprised under survey Nos. 1781/836, 1782/836. The building permission was granted subject to various conditions which include maintenance of set-backs. The plaintiff had started the construction. He filed a revised site plan to the respondents and according to the said site plan she sought permission to raise five storeys building on the said piece of land. It is averred in the plaint that the revised site plan was submitted in the year 2003 and the copies of the said plan were sent to the Municipal Authorities, as consequence of which the plaintiff presumed that they had no objections. This assumption of the plaintiff was based upon Regulation 7 (iii) of the Jammu and Kashmir Control of Building Operation and Revised Regulations Act 2001. It is contended by the plaintiff that since defendant/ petitioners have not communicated any order, it is deemed that they have no objection. On this deemed permission she started raising construction. In essence, the edifice of case is that she is entitled under law to raise construction up to five stories by invoking Regulation 7(iii) of the Jammu and Kashmir Control of Building Operation and Revised Regulations Act 2001.

4. On the other hand the defendants stated that the application for grant of temporary injunction is misconceived as the main relief claimed by the plaintiff is the same as is sought in the present application. The other ground taken by the defendants was that Section 13 and 14 of the Jammu & Kashmir Control of Building Operation and Revised Regulations Act 2001, clearly debar the civil court from entertaining any suit or making any interim order whether by way of injunction or stay against the order of authority concerned or the appellate officer and to entertain any suit or proceedings in respect of demolition of any building. The construction raised was prohibited by the Master Plan as published by the Government.

5. The trial court dismissed the application on two grounds; a) that since it was the main relief claimed by the plaintiff in the suit, the application was not maintainable; b) that the deemed sanction could not be invoked by the plaintiff as the said construction was prohibited by the Master plan.

6. Trial court clearly stated that the commercial use of land was in violation of the Master Plan. No finding was returned by the trial court in respect of other plea that no suit could be filed in terms of Section 13 and 14 of the Act. Thus, an appeal was taken up before the appellate court. The appellate court after hearing the parties allowed the appeal and set-aside the order of trial court. The appellate courts finding was that the plaintiff had already completed the construction of the building and it was incumbent upon the court to protect the list during the pendency of the suit. It has also been observed by the appellate court in its judgment that the constru

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