Advocates:
['BARI ABDULLAH', 'R K S THAKUR', '', 'O P THAKUR']

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

CREF No. 01/2016

IA No. 01/2017

Pronounced on: 17.03.2021

Bittu Ram

…. Petitioner (s)

Through:-

None

V/s

Suram Chand

…..Respondent(s)

Through:-

Mr. R. K. S. Thakur, Advocate

CORAM : HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

JUDGMENT

01.

This reference is under section 113 of the Code of Civil

Procedure which has been made by the then Sub-Judge Ramban. The facts

in the suit giving rise to this reference are as under;

02.

A civil suit for permanent prohibitory injunction restraining

defendant from interfering in possession of the land of plaintiffs measuring

01 kanal and 06 marla comprising Khasra No. 480 situated in village

Parnote Tehsil and District Ramban was filed by 09 villagers against the 12

persons of the same village. The trial court passed ad interim order on

26.09.2009 restraining the defendant from interfering till objections were

filed and considered. After hearing the parties, the order of injunction dated

26.09.2009, however, was vacated by the trial Court vide its order dated

23.12.2009. The plaintiff challenged the order vacating ad interim order by

filing a miscellaneous appeal before District Judge, Ramban. This appeal

was allowed by the District Judge Ramban vide order dated 25.10.2010

with a direction to the parties to maintain status quo on spot.

2

CREF No. 01/2016

03.

The defendants challenged the order dated 25.10.2010 by filing a

revision under section 115 of CPC. When this revision i.e. C. Rev. No.

48/2011 came up for hearing on 30.04.2016, it was dismissed by the court.

The operative portion of the same is extracted below:

<…..Learned counsel appearing for the petitioners on seeing

the trial court records submits that the suit itself was dismissed

by the trial court on 17.12.2013.

In view of the same, Civil Revision petition No. 48/2011 is

dismissed as having been rendered infructuous……=

04.

However, since Judgment and Decree dated 17.12.2013 has been

challenged in appeal before the Principal and District Judge, the court

decided the appeal by order dated 28.03.2010 and para nos. 8, 9 and 10 of

the same being relevant are reproduced below:

<8.

There is no doubt that mere pendency of an appeal or

revision in the higher or appellate/revisional forum and order of

status quo, ipso-facto does not tantamount to stay of proceedings

of the trial court. However the appellants have placed on record

of this court, a copy of subsequent order dated 23.05.2011 passed

by Hon’ble High Court of J&K, vide which record of the trial

court has been sent for. It appears that the said order was never

brought into the notice of Ld. Trial court. Summoning the record

of a subordinate court certainly amounts to stay of the

proceedings and the propriety demands that Ld. Court below

ought to have sent and submit record of the case before the

Hon’ble High Court.

9.

Ld. Counsels on the rival sides have admitted the

pendency of revision petition in the Hon’ble high Court of J&K,

as also order dated 23.05.2011, vide which record of the trial

court has been sent for. However, a already discussed, the said

order was neither produced before nor brought into notice of ld.

Court below and ld. Trial court being oblivious of the said order

3

CREF No. 01/2016

passed the impugned judgment and decree which his required to

be set aside.

10.

Viewed thus, the present appeal is allowed and

impugned judgment and decree are set aside. Consequently the

case is remanded back to the trial court and learned Trial court is

directed to immediately submit record of the case before Hon’ble

high Court without further lapse of time. Record of the trial court

alongwith copy of this order be immediately sent back.=

05.

The case was remanded, but while setting aside the impugned

Judgment and Decree, there is no reference to the evidence, muc