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2001 DIGILAW 203 (JK)

Gh. Qadir Hajam v. Ali Khan

2001-09-13

SYED BASHIR-UD-DIN

body2001
1. Revision petitioners filed suit for declaration and injunction in the court of District Judge, Pulwama, who transferred this case on the file of Munsiff Tral, for trial. The plaintiffs sought declaration of being continuously in possession of their share of land measuring 19 Marlas in Survey No. 593/402/3 of Khewat No. 105 min for last number of years to the exclusion of other co-owners and co-sharers and to injunct the respondents from interfering with his alleged possession over the suit land. Simultaneously, an application for temporary injunction was moved. The trial court of Munsiff Tral after hearing parties made absolute the orders of status quo passed earlier on 2.1.1999 for reasons given in the order. Against this order an appeal was filed before District Judge, Pulwama. The appellate court on 10.10.2000, set aside the status quo order as perverse, and not maintainable, while accepting the appeal. This order of the appellate court is under challenge in this revision. 2. The main challenge to the order, thrown in his submission by the learned counsel for the petitioner, is on the ground that the impugned appellate order suffers from jurisdictional error and is legally infirm in as much as no appeal lays against the order of status quo in question since the order is not temporary injunction order covered by Rule 1 and 2 of Order 39 CPC and is not included in the category of appealable orders prescribed under Order 43 CPC. The status quo order is not an order of temporary injunction, but an order passed to preserve the subject of the suit. 3. The counsel further submits that the order of appellate court in setting aside the status quo order of the trial court is not merited in as much as it has caused injustice to the plaintiffs. The appellate court is not justified to upset the order passed in discretion on consideration of the material available with the trial court. The trial court could not have been tinkered with casually. 4. The learned counsel for defendants Mr. S.T. Hussian in reply submits that the order of status quo of trial court pendenlite is for all intents and purposes an order of temporary injunction. It is not passed under Section 151 CPC. This order of trial court is in fact covered by order 39 Rule 1(b). 4. The learned counsel for defendants Mr. S.T. Hussian in reply submits that the order of status quo of trial court pendenlite is for all intents and purposes an order of temporary injunction. It is not passed under Section 151 CPC. This order of trial court is in fact covered by order 39 Rule 1(b). The trial court has passed the order with the object of benefiting the plaintiffs by alluding them with the possession of the suit land and depriving defendants of their de facto possession of the suit land. The order is appealable and covered by Order 43 Rule 1(r). The District Judge, Pulwama competent to hear the appeal, has passed the impugned order on merits within jurisdiction. Therefore, no question of jurisdictional error or legal infirmity is attached to the impugned order. The counsel of jurisdictional error or legal infirmity is attached to the impugned order The counsel goes on to canvass that in appeal, the appellate District Judge, has examined thoroughly all aspects of the case and has come to the conclusion that the impugned order has been passed without addressing all the facts and on non-consideration of material aspects of the case. The documents and material having a tilting bearing on the question of interim injunction is left out of consideration. The District Judges conclusion that the order of Munsiff, Tral, in appeal in perverse and illegal cannot be found fault with. The order is neither un-just nor proper. The order has been passed within the parameters of law. 5. The order of trial court of Munsiff Tral, shows that the application moved before the trial court simultaneously with the suit, is for interim relief of temporary injunction, to which the other side has filed its objections. The Munsiff at that stage found that plaintiffs before him are claiming possession of 19 Marlas as co-shares of the suit land. The Revenue extracts support the contention of plaintiffs being co-shares. The Munsiff at that stage found that plaintiffs before him are claiming possession of 19 Marlas as co-shares of the suit land. The Revenue extracts support the contention of plaintiffs being co-shares. The trail court also noticed that the suit land had been attached under 145 Cr.P.C proceedings by Additional District Magistrate, Pulwama and ADM Pulwama ordered maintenance of status quo, while there can be no dispute with legal proposition that status quo order of civil court cannot deprive the Magistrate to proceed with and oust the jurisdiction of criminal court to take the proceedings under Section 145 Cr.P.C, in support whereof petitioners counsel cities 1988 KLJ 807 and 1991 KLJ 56, what the Munsiff has observed is that since record of that file is not before the Munsiff, therefore, whether this order of District Magistrate has been put in place or not is not made out on record. The Munsiff, without spelling out the reasons, has stated that he has given thoughtful consideration to the pleadings and arguments of the parties and deems it fit and proper in the peculiar circumstances of the case to make absolute the order of status quo passed on 2.21999, till final disposal of the suit. What are the peculiar circumstances having driven him to pass status quo order are not at all made mention of in the order which is strange of sorts. The trail court has no where stated that this order is passed under 151 Cr.P.C and rightly so, as the application is moved and temporary injunction relief is sought (loudly and widely) under order 39 CPC. 6. In Midche Linge Gowda & Another vs. Channamma and another (AIR 1974 Kant. 631) is cited by revision petitioners counsel in support of his submission that an order of status quo cannot be treated as an order under Order 39 Rule 1, CPC hence not appealable under Order 43, Rule (1) (r). The status quo order under challenge before High Court of Kant: In this case read as:- "Heard the Advocates. The party whosoever is in possession is to maintain the status quo. The parties to maintain status quo until an order on merits is passed." 7. Obviously, in absence of final order, the status quo order as above is not an order under Order 39 rule 1. The party whosoever is in possession is to maintain the status quo. The parties to maintain status quo until an order on merits is passed." 7. Obviously, in absence of final order, the status quo order as above is not an order under Order 39 rule 1. But once the final order is made absolute to last within the life of suit, it is an order covered by words"...or make such other order... as court thinks fit until disposal of the suit...." occurring in Order 39 Rule 1 (b) CPC. Hence appellable under Order 43, Rule 1(r) CPC. 8. This order for all purposes in fact is an and order of pendentlite injunction restraining the respondents/defendants from raising construction on spot. It has trappings of an injunction order so far as defendants are restrained from interfering or causing interference with or raising construction on the suit land. The order restrains defendants from intermeddling with the suit land, besides preventing other side from raising any construction on the suit land. This order of the trial Munsiff is covered by words "or make such other order" of Rule 1 (b) of Order 39. The contention that appeal is not competent against such an order is not up held in the facts and circumstances of this case. 9. The District Judge on examination of the matter in appeal, has taken notice that the trial court has failed to note and appreciate that the plaintiff had earlier filed the suit No. 10 of 1998 for Mandatory and permanent injunction in respect of the same land, subject matter of this suit, which suit was dismissed by Munsiff Pampore on 3.3.1999. The plaintiffs did not mention the dismissal of this earlier suit or even filing of the plaint thereof in the application for interim relief moved in the suit, of which Munsiff Tral is seized. Instead of seeking remedy of restoration of the suit, appellants preferred to file the fresh suit and supress the fact of earlier suit having been dismissed. This conduct of plaintiffs in approaching the court is unfair and speaks of plaintiff having come to court with unclean hands. While seeking equitable relief, the suppression of this aspect of the case besides being malafiedy, is unwholesome. 10. The appellate court has also noticed that in proceedings under Section 145 Cr.P.C before Addl. This conduct of plaintiffs in approaching the court is unfair and speaks of plaintiff having come to court with unclean hands. While seeking equitable relief, the suppression of this aspect of the case besides being malafiedy, is unwholesome. 10. The appellate court has also noticed that in proceedings under Section 145 Cr.P.C before Addl. District Magistrate Pulwama in which proceedings the suit land has been the subject matter, the Magistrate has found appellants in physical possession of the suit land and Revenue authorities have been asked to protect the appellants possession. While so, eve this aspect of the case has been also wholly ignored by the Munsiff, which he could not have done and that he was under a legal duty to appreciate this aspect of the case. 11. The trial court has recorded that the Revenue entries including record of rights show that the parties to the suit are co-owners of the total land in the Khasra and Khewat in question if so then one co-owner cannot sue another co-owner for restraining him to interfere with the joint possession. This aspect of the case too has been lost sight of by the Munsiff. 12. After examining these aspects of the case in conjunction with consideration accorded to the facts and circumstances appearing on record, the appellate court of District Judge, Pulwama has come to the conclusion that the order of Munsiff Tral is illegal and not sustainable. The appellate court having come to the conclusion on consideration that the trial court has acted unreasonably and has ignored the relevant facts and prime aspects of the case, it was open to the appellate court to interfere with the trial courts exercise of discretion. The appellate court on recording finding for reasons, that the trial courts prima facie satisfaction is wrong, cannot be said to have ignored or by passed the rules of reason and justice. Having found the order arbitrary, lopsided and passed in ignorance of the facts and law, the District Judges reversal of trial courts order is within confines of law. No illegality or infirmity is attached to this order of the appellate court. The impugned order of District Judge, Pulwama is not shown to suffer from any jurisdictional error or legally infirm. 13. In result, revision petition is dismissed.