HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

(THROUGH VIRTUAL MODE)

PRONOUNCED ON : 07.10.2022

CM (M) No. 186/2021

CM no. 3866/2022

CM no. 7848/2021

Bashir Ahmad Khan and others

….. Petitioner(s)

Through: Mr. G.A.Lone, Advocate.

Vs

Union Territory of Jammu and Kashmir

and others

.…. Respondent(s)

Through: Ms. Rehana Bashir, Advocate vice

Mr. M.Y.Lone, Advocate.

Coram:

HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

JUDGMENT

1.

Heard learned Counsel for the parties.

2.

Physicist Martin Fischer's quote <Conclusion is the place where you got

tired of thinking= nearly explains the thinking effort on the part of the

Principal District Judge, Kupwara’s decision in holding the appeal of the

petitioners against a temporary injunction order of the civil court as not

maintainable on a premise that section 104 read with Order 43 of the

Code of Civil Procedure, 1908 does not bear mention of an order passed

under section 94 (c) and (e) of the Code of Civil Procedure, 1908 as

being appealable. In rushing to reach said conclusion to knockdown the

appeal, the Principal District Judge, Kupwara made text surfing of

section 94, section 104 and Order 39 & 43 of the Code of Civil

Procedure, 1908.

Sr.No. 1

2

CM (M) No. 186/2021

3.

Thus, the adjudication of the present petition, invoking the supervisory

jurisdiction of this Court under article 227 of the Constitution of India,

perforce invites this court to delve into the understanding of the Code of

Civil Procedure 1908 in the context of its sections and the first schedule

to come to hold that the Court of Principal District Judge Kupwara erred

very seriously in choking the very remedy of appeal of the petitioners

against the impugned order.

4.

Following the dictum facts first law next, the needful mention of the

facts of the case bearing the controversy in reference is that the

respondent no.5–Mst. Amina Begum has come to maintain a civil suit

against the petitioners and others on the file of the court of Sub-Judge,

Handwara. The suit is for declaration, partition, possession and

injunction with respect to estate of the parties’ predecessor-in-interest

late Mohd. Yaqoob Khan comprising of land measuring 76 kanals

situated at village Ashpora, tehsil Handwara and 102 kanals of land

situated in tehsil Qaziabad. In the suit there are fourteen defendants. The

petitioners are eight in numbers figuring in the said array of fourteen

defendants. In this civil suit, in terms of an interim order dated

28-06-2019, the trial court has put in place an interim injunctory

direction to the following effect, <whereby the defendants have been

directed not to create third party interest in the suit property in any

form or manner till filing of the detailed written statement in the main

suit and objection in the application for temporary injunction=.

3

CM (M) No. 186/2021

5.

There is a counter civil suit filed before the same very trial court of Sub

Judge Handwara by the petitioners herein against said respondent no. 5-

Mst. Amina Begum pertaining to a property measuring 10.11 kanals in

survey number 50 min situated in village Ashpora, tehsil Kralgund. In this

counter civil suit, there is operating an injunctory direction as well in

terms of an order dated 12/10/2020 which is reproduced herein next

<whereby the parties of the suit have been directed to maintain status

quo on spot with respect to the above mentioned suit land as existing

today subject to objections from other side”.

6.

Both the said two civil suits have come to be clubbed together vide an

order dated 14/11/2019 by the trial court of Sub Judge Handwara and the

ad interim ex parte injunctory directions in terms of above mention