1. Petitioners have invoked the writ jurisdiction of this court for quashing the orders dated 26th of April, 2011, and 5th of May, 2011 passed by Sub Judge, Anantnag in a suit titled Abdul Rehman Dar and ors versus Mohd. Shafi Wani and others, and order dated 27th of July, 2011 passed by Additional District Judge, Anantnag in an appeal titled as Showkat Ali Bhat and others versus Abdul Rehman Dar and others, hereinafter for short as impugned orders, on the grounds taken in the memo of petition.

2. It appears that respondents' herein-plaintiffs before the trial court have filed a civil suit for decree of permanent injunction along with the application for grant of ad-interim relief. Exparte order came to be passed vide order dated 26th of April, 2011 was made absolute vide order dated 5th of May, 2011, was subject matter of the appeal before the Additional District Judge, Anantnag, came to be dismissed vide judgment and order dated 27th of July, 2011. All the three orders are impugned in this writ petition.

3. Precisely the case of the petitioners is that the impugned orders have been passed in hot haste; without application of mind and without taking into consideration the grounds taken by the petitioners-defendants in the written statement.

4. Petitioners have not questioned the competence-jurisdiction of the trial court. Petitioners have also not averred in the writ petition that trial court or appellate court have passed the orders without or in excess of jurisdiction.

5. The maintainability of the writ petition is put under cloud by its very own averments for the following reasons:-

6. Civil Procedure Code, hereinafter for short as CPC, has undergone a sea change with the amendment of 2009. The amendment has restricted the powers of the revisional court, and no revision lies against the order passed by the trial court confirmed by the appellate while passing discretionary orders in terms of Order XXXIX of the CPC. Virtually writ petition is in the nature of revision petition and if such a practice is adopted and allowed that will render the aim and object of the amendment infructuous and meaningless. The fact of this court having vast powers under Article 226 and 227 is undisputed, but care has to be taken when the same is warranted to be exercised, because the powers under such articles has to be utilized very cautiously, carefully, sparingly and in rarest of the rare cases.

7. Admittedly the suit was filed by the respondents for grant of decree of permanent injunction and alongside application for grant of interim direction came also to be filed till final disposal of the suit. After considering the matter, the trial court passed, exparte interim order vide order dated 26th of April, 2011. The petitioners-defendants sought its vacation by virtue of an application besides filed the pleadings.

8. Trial court after hearing learned counsel for the parties, scanning the pleadings of the parties came to be conclusion that respondents-plaintiffs have a prima-facie case, balance of convenience seems in their favour and in case interim direction granted on 26th of April, 2011 is vacated, varied or modified that will cause irreparable loss to the plaintiffs-respondents herein and made the order absolute, resulting in rejection of the application made by the petitioners-defendants.

9. Feeling aggrieved, the petitioners-defendants filed appeal and learned Additional District Judge, Anantnag after hearing the counsel for the parties and after marshalling the material before it, upheld the prima-facie view of the trial court vide judgment and order dated 27th of July, 2011.

10. Parties before the court are private persons and not the State and therefore, a question arises as to whether a writ is maintainable against an individual in his personal capacity?

The answer is in negative for, the Apex Court in case titled Shalini Shyam Shetty versus Rajendra Shankar Patil reported as 2010 AIR SCW 6387 held that if the litigating parties are private an

Click Here to Read the rest of this document