HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

(Through Virtual Mode Srinagar)

WP(C) No.2151/2019

CM No. 4445/2019

Darshan Lal and another

…..Appellant(s)/Petitioner(s)

Through: Ms. Surinder Kour, Sr. Advocate with

Ms. Manpreet Kour, Advocate

Vs

Sawarn Lal and another

.…. Respondent(s)

Through: Mr. B. S. Manhas, Sr. Advocate with

Mr. Amarveer Manhas, Advocate

Coram: HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE

JUDGMENT

1.

In the suit filed by the petitioners-plaintiffs against the respondents-defendants

the trial court while disposing of the interim application, filed by the petitioners

herein, on 23.03.2019, restrained the respondents from causing interference or

forcibly disturbing the plaintiffs from the suit property. The court further

directed the petitioners not to raise any construction/ renovation work over the

suit land/suit property unless permitted by the concerned authorities. The

appeal was preferred by the respondents herein against the order dated

23.03.2019, before the court of learned 2^nd Additional District Judge, Jammu

and the same came to be disposed of vide dated 04.05.2019. By virtue of said

order, the appeal was accepted and the order impugned was set aside. The

petitioners have filed the present writ petition against the order of appellate

court whereby the interim order passed by the learned City Judge has been set

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aside on the grounds mentioned in the petition. The respondents have appeared

and have contested the writ petition without filing the objections. The record of

the trial court as well as appellate court was summoned and is before this court.

2.

The learned senior counsel appearing on behalf of the petitioners has argued

that the appellate court has erroneously decided the appeal and set aside the

order of the trial court on the issue which was not required to be finally dealt in

the appeal filed against the interim order.

3.

The learned counsel appearing for the respondents herein has argued that the

appellate court has rightly allowed the appeal of the respondents and dismissed

the application filed under Order 39 Rule 1 & 2 CPC on the ground that the

suit is not maintainable.

4.

The perusal of the plaint reveals that the plaintiffs had filed the suit for

permanent prohibitory injunction restraining the defendants from causing

interference into the suit property as mentioned in the plaint. The trial court

while allowing the application had on the basis of the judgments referred in the

order held that the court is not required to decide the maintainability of the suit

in the interim application and considered the plea of the defendants as

misconceived one.

5.

In the appeal filed by the respondents herein the appellate court touched the

issue of maintainability of suit while deciding the appeal which was preferred

against the order passed in the interim application and allowed the appeal

mainly on the ground that the suit filed by the plaintiffs was not maintainable.

The appellate court held that the trial court did not go into the root of the case

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and took up the issue of maintainability of the suit while deciding the appeal.

The appellate court held that the suit is not maintainable in view of the

provisions of J&K Evacuee (Administration of Property) Act 2016. The court

while holding that the suit is barred in terms of the aforesaid Act stated that it

cannot decide the fate of suit pending before the trial court because this court is

seized of the matter pertaining to interim application under Order 39 Rule 1 &

2 CPC. The court however further observed that the observations made in the

appeal are limited to the disposal of the appeal and shall have no bearing on the

merits of the main suit.

6.

It is trite proposition of law that the appellate court sho