Courts must not exceed their jurisdiction by issuing interim directions without granting the parties an opportunity to be heard, and failure to render necessary findings to support an order would be a jurisdictional error.

JUDGMENT :

1) The petitioner through the medium of present petition has impugned the order dated 26.02.2018 passed by the Court of 1st Additional Munsiff, Srinagar (hereinafter referred to as “the trial court”) in the suit titled “Nissar Hussain Mir vs. Akhtar Hussain Mir & others” to the extent of directing the petitioner not to make any impediment in the usage of the pathway by the respondents till the final disposal of the main suit.

2) The impugned order has been assailed on the ground that the learned trial court could not have passed the said order while deciding a preliminary issue, framed by the learned trial court out of the pleadings of the parties. It is stated that along with the suit, an application for interim relief was also filed by the petitioner and as per order dated 28.04.2011, the application was ordered to be kept/tagged with the main suit.

3) Precisely, the case projected by the petitioner is that once the application for grant of interim relief was pending, the learned trial court could not have passed the interim direction as mentioned above while deciding the preliminary issue.

4) The respondents have not filed the response but learned counsel for the respondents, Mr. Mujeeb Andrabi submitted that he would argue the matter on the basis of the available record. Accordingly, this matter was heard by this Court.

5) Learned counsel for the petitioner submitted that once the learned trial court did not pass any order in the application for interim relief and kept the application along with main suit, it was not open for the learned trial court to pass any interim order while deciding the preliminary issue and keeping the application for grant of interim relief pending.

6) Per contra, Mr. Mujeeb Andrabi, learned counsel for the respondents, submitted that the present petition is not maintainable as the learned trial court has not finally decided the rights of the parties.

7) Hear and perused the record.

8) The perusal of the record reveals that a suit for declaration and injunction was filed by the petitioner was opposed by the respondents by filing of a written statement. Out of the pleadings of the parties, the learned trial court framed the issues and issue No.5 was ordered to be treated as a preliminary issue. The learned trial court while deciding the preliminary issue in favour of the petitioner directed that the petitioner shall not make any impediment in the usage of pathway by the respondents till the final disposal of the main suit. The perusal of the record reveals that the learned trial court vide its order dated 03.03.2009 temporarily restrained the respondents from alienating the suit property. Both the counsels were unanimous in submitting that the application for interim relief has not been finally decided by the learned trial court. It is borne from the record the plaint has been amended and the amended written statement has been filed by the respondents.

9) Once the trial court was seized of the application for grant of interim relief, the learned trial court, after hearing the parties, could have decided the application and pass appropriate orders but in no manner such direction could have been issued by the trial court while deciding a preliminary issue. This court is of the considered view that the learned trial court has exceeded its jurisdiction by directing the petitioner not to cause any impediment in the usage of pathway by the respondents till the final disposal of the main suit, while deciding the preliminary issue. This Court also finds that the petitioner has been condemned unheard as no opportunity of being heard was granted to the petitioner while issuing such direction. In Kishore Kumar Khaitan v. Praveen Kumar Singh, (2006) 3 SCC 312, Apex Court has held as under:

13. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the que