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2002 DIGILAW 82 (JK)

Gulla Khan v. Akbar Khan

2002-03-28

MUZAFFAR JAN

body2002
1. This revision petition has been filed to set-aside the order dated 6.6.2001 passed by learned District Judge, Kupwara, in Civil Appeal titled Akbar Khan V. Gulla Khan. 2. Record reveals that petitioner was adopted as Pisar-Parwarda by late Lassa Khan. On the death of Lassa Khan, he came to be in exclusive possession of the landed property of Lassa Khan. The respondents started to interfere in the peaceful possession of the petitioner and as such he instituted a suit for perpetual injunction in the court of sub-Judge, Handwara. Alongwith the suit an application for temporary injunction was also filed in which the trial court directed the present respondents not to cause any interference vide order dated 4.9.1998. This order was challenged in appeal before the learned District Judge, Kupwara. On 6.6.2001. The learned District Judge, Kupwara, while taking cognizance of the appeal, passed an interim direction staying the operation of order dated 4.9.1998. It is the validity of this stay order of learned District Judge passed on 6.6.2001 which has been challenged in the present revision petition. 3. The main grounds taken in the revision petition are that although the order passed by the learned Sub-Judge, restraining the non-applicants from causing any interference in the possession of the petitioner was passed on 4.9.1998, yet the learned District Judge took cognizance of the appeal after a period of 2 years, 9 months and 2 days of the period of limitation in abject disregard of law and facts. Since the very appeal was barred by limitation, the learned District Judge should have rejected the appeal on the sole ground of limitation and should have abstained from passing the impugned order which deserves to be set-aside. 4. Heard learned counsel for the parties and perused the record. 5. The learned counsel for the petitioner has relied on the judgment reported in AIR 1992 J&K 124 in which it is held that appeal is maintainable against an order of temporary injunction passed in ex-parte, but it would be in the fitness of things if instead of filing the appeal, the party approaches the appellate court and files objections and the appellate court would also refuse to entertain the appeal till the aggrieved party makes motion for vacation of the interim stay. The petitioner herein having cited and relied on the said authority, has not approached the appellate court of District Judge, Kupwara, against the ex-parte order of stay dated 6.6.2001 but has straight way filed this revision petition challenging the jurisdiction of the learned District Judge, Kupwara, to entertain the appeal. It maybe observed that a court having no jurisdiction to entertain the appeal can pass interim orders and until the issue of jurisdiction is decided the interim orders shall be deemed to be effective till the decision is returned to establish that the court does not have the jurisdiction to decide the main controversy. This view has been held by the Apex Court in Tayabbhai M. Bagasarwalla V Hind Rubber Industries Pvt. Ltd. AIR 1997 SC 1240 in the following words: .... A mere objection to jurisdiction does not instantly disable the court from passing any interim order. It can yet pass appropriate orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interim order so passed are orders within jurisdiction when passed and effective till the court decides that it has no jurisdiction to entertain the suit.� 6. Reverting to the merits of the revision petition, it is admitted that against the ex-parte order of the trial court dated 4.9.1998 an appeal was filed in the court of learned District Judge, Kupwara, and the learned District Judge stayed the operation of the order of temporary injunction vide order dated 6.6.2001. Again the point for consideration would be whether the learned District Judge had the jurisdiction to entertain the appeal or not. The aspect of jurisdiction involves mixed questions of fact and law even when jurisdiction of the court is challenged on the basis of limitation. This being the legal position, the objection of limitation and consequentially the lack of jurisdiction of the court cannot be decided in the present proceedings which have been taken on the revisional side. Considering the facts and circumstances of the case and for the reasons given above, this revision petition is disposed of with direction that the learned District Judge, Kupwara, will consider the objection regarding the maintainability of the appeal on the objection of limitation, and decide the controversy within a period of two months after the receipt of this order.