CR No. 4/2021

S. No. 106

Suppl.-1 Cause List

HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

CR No. 4/2021

CM No. 1681/2021

Reserved on: 23.03.2021

Pronounced on: 25.03.2021

Ghulam Nabi Mir

…..Petitioner(s)

Through: Ms. Asma Rashid, Advocate

V/s

Nisar Ahmad Mir and Ors.

….. Respondent(s)

Through:

CORAM:

HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

O R D E R

25.03.2021

1.

In this revision petition, challenge is thrown to the order dated

18.03.2021, passed by learned Munsiff/Civil Judge (JD), Bandipora, (for short

<Trial Court=) in case titled Gh. Nabi Mir v. Nisar Ahmad Mir and Ors,

whereby application of the petitioner/plaintiff filed under Order XXXIX Rule

1 & 2 of the Code of Civil Procedure, seeking temporary injunction, has been

dismissed. This order of Trial Court is challenged in this revision petition,

precisely, on the grounds that the Trial Court has not appreciated the pleadings

put forth by the petitioner; there was nothing on record to show that the

property was partitioned by the parties either by way of family settlement or

partition deed; it was the case of the plaintiff that parties were living

separately; the Trial Court, while dealing with the application seeking

temporary injunction, has misdirected itself and has failed to appreciate the

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case set up by the petitioner; the Trial Court while passing the impugned order

has held that the petitioner-plaintiff has failed to add Firdous Ahmad Mir as

party, though petitioner has filed an application seeking his impleadment in

the suit which has not been decided; there was otherwise no record to show

that Firdous Ahmad Mir was in possession of one shop; it is settled position

of law that the possession of one co-sharer is considered to be possession of

all co-sharers; the Trial Court while passing the order impugned has exercised

its jurisdiction illegally on non-existent grounds in a slipshod manner and has,

thus, caused failure of justice.

2.

Heard learned counsel for petitioner and perused the record on the file.

3.

As regards the question of maintainability of this petition under Section

115 CPC, learned appearing counsel for petitioner has submitted that on the

grounds stated in the memo of revision, there is no bar for maintaining this

revision petition. In support of her arguments, she relies upon the judgments

rendered in the cases of Abdul Salam Wani and Ors v. Mohammad Subhan

Khan and Ors. (CR No. 73/2009), decided on 05.06.2010, State of J&K and

Ors. v. Ghulam Rasool, decided on 02.09.1997, Subash Chander v. Mata

Vbaishno Devi Shrine Board, decided on 01.12.2006 and Abdul Rehman Bhat

v. Ali Mohammad Manroo, decided on 08.07.1998.

4.

It may not be out of place to mention here that an Order, passed under

Order XXXIX Rue 1 & 2, CPC, rejecting or allowing application for grant of

temporary injunction, is appealable under Order XLIII of CPC. Appeal is

provided under clause <r= of Rule 1 of the said Order, which reads as under;

1. Appeals from order:- An appeal shall lie from the

following orders under the provisions of Section 104,

namely

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(r) an order under Rule 1, Rule 2, Rule 2(a), Rule 4 or

Rule 10 of the Order XXXIX.

5.

So, it is clear from the provisions of Order XLIII, CPC, that the order,

whereby an application has been rejected and grant of temporary injunction

refused, is appealable. Section 115 CPC, in terms whereof revision petition

on hand has been filed, provides grounds and reasons for preference of

revision, which are:

115. Revision:-1. The High Court may call for the record of any

case which has been decided by any Court subordinate to the

High Court and in which no appeal lies thereto, and if such

subordinate Court appears