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2009 DIGILAW 164 (JK)

Salaam Dar v. Mahada Dar

2009-04-10

MANSOOR AHMAD MIR

body2009
1. This Revision Petition is directed against the order dated 08.12.2008, passed by Munsiff, Budgam, whereby and whereunder application for grant of ad-interim relief moved by the respondent/ plaintiff came to be granted and exparte order of status-quo/ injunction granted vide order dated 25th of June, 2008 came to be confirmed, on the grounds taken in the revision petition. 2. It is averred in the revision petition that Ghulam Mohammad Dar, brother of the respondent/ plaintiff has already filed a suit relating to the same subject matter and has prayed for the same relief by the present respondent/ plaintiff. 3. The brief facts of the case are that a suit for permanent injunction along with application for ad-interim relief came to be filed by the plaintiff-respondent on the ground that he is the owner in possession of land measuring 04 kanals and 05 marlas covered under survey No.371/11 situate at Village Sheikhpora Tehsil and District Budgam, on which he had constructed a residential house and kitchen more than 20 years back. The level of his house is 11 ft. below the level of Srinagar-Budgam road and defendant-petitioner was also having a house adjacent to the land of the plaintiff/ respondent which he has dismantled and is now raising a new construction by levelling his land by filling it with clay, stones, cement etc. and thereby has raised the level of his land higher than the level of the land of the plaintiff/ respondent, which will adversely affect his rights and interests. In case defendant-petitioner is allowed to construct plinth and go ahead with the construction, that would cause damage to the wall and other property of the plaintiff-respondent and the market value of his property would also get affected. The plaintiff/ respondent has sought decree of permanent injunction and interim relief for temporarily restraining the petitioner/ defendant from raising any sort of plinth or to raise the ground level for construction. 4. Admittedly, the defendant has raised level of his plinth and now he is going ahead with the construction. It is also borne out from the record that the defendant has dismantled his old residential house which was badly damaged and in order to raise construction, has collected building material on spot. 5. Keeping in view the pleadings and the material on the file, plaintiff has tailed to carve out a prima facie case. It is also borne out from the record that the defendant has dismantled his old residential house which was badly damaged and in order to raise construction, has collected building material on spot. 5. Keeping in view the pleadings and the material on the file, plaintiff has tailed to carve out a prima facie case. The balance of convenience lies in favour of the defendant -- petitioner for the reasons that he had collected material and is raising construction on his own land not on the land of the plaintiff -- respondent and in case he will not be allowed to raise the construction, he has to face irreparable loss because he and his family would be without roof and shelter as he has dismantled his residential house. 6. It appears that an exparte interim relief came to be granted and vacated by the court of Sub-Judge, Budgam, in a suit titled as Ghulam Mohammad Dar Vs. Abdul Salam Dar, and application for grant of ad-interim relief came to be rejected. 7. Feeling aggrieved, Ghulam Mohammad Dar (plaintiff in that suit), preferred an appeal before the learned District Judge, Budgam -- came to be allowed and order passed by Sub-Judge, Budgam, came to be set-aside and application for ad-interim relief came to be granted. Petitioner, Abdul Salam Dar, defendant therein, challenged the said order by the medium of C. Rev. No. 136/2008 -- came to be allowed and order of District Judge, Budgam, came to be set-aside and the order of Sub-Judge, Budgam, came to be restored with the direction to the defendant/ petitioner herein to execute undertaking, in terms of the directions contained in the said order. 8. It appears that Ghulam Mohammad Dar (plaintiff in that suit), feeling aggrieved, questioned the judgment/ order of this Court passed in C. Rev. No. 136/2008 before the Apex Court by the medium of Special Leave to Appeal (Civil) which came to be dismissed vide order dated 23.02.2009. 9. The averments contained in both the suits i.e. Ghulam Mohammad Dar Vs. Abdul Salam Dar and Mehda Dar Vs. Abdul Salam Dar, subject matter and relief claimed are one and the same. 10. Ghulam Mohammad Dar, plaintiff in the suit titled Ghulam Mohammad Dar Vs. 9. The averments contained in both the suits i.e. Ghulam Mohammad Dar Vs. Abdul Salam Dar and Mehda Dar Vs. Abdul Salam Dar, subject matter and relief claimed are one and the same. 10. Ghulam Mohammad Dar, plaintiff in the suit titled Ghulam Mohammad Dar Vs. Abdul Salam Dar, has stated that he is the owner and in possession of the suit property and whereas in the present plaint Mahada Dar has stated that he is owner in possession of the subject matter. He has nowhere stated in the petition that already his brother has filed a suit. Thus, has concealed the material fact(s). 11. A perusal of the record reveals that petitioner herein has filed certified copies of the order passed by trial court (Sub-Judge) and appellate court and, plaint and written objections before the trial court (Munsiff Court) and despite of that impugned order came to be passed. 12. Petitioner has not questioned the impugned order by the medium of appeal though it is appealable but has availed the remedy of Revision. The revision petition is competent, despite of the fact that order is appealable. If the appeal is to be preferred before this Court then remedy of revision is not available. In-the instant case appeal was to be preferred before the District Judge and not before this Court. Thus revision is maintainable. This Court in case titled Ivrishan Singh and others Vs. Om Prakash reported in 1979 SLJ 177 has taken the same view. 13. Apex Court has also held in case titled as Smt. Vidya Vati vs. Shri Devi Das, reported in AIR 1977 SC 397, that revision is competent when no appeal lies to the High Court. Accordingly, it is held that revision is competent. 14. Keeping in view the pleadings, it is very easy to assess the damages. Thus, it is the duty of this court to protect the interests of the plaintiff by directing the petitioner/ defendant to execute an undertaking that in case the plaintiff succeeds in the suit in that eventuality the petitioner/ defendant has to compensate the plaintiff. 15. 14. Keeping in view the pleadings, it is very easy to assess the damages. Thus, it is the duty of this court to protect the interests of the plaintiff by directing the petitioner/ defendant to execute an undertaking that in case the plaintiff succeeds in the suit in that eventuality the petitioner/ defendant has to compensate the plaintiff. 15. In the given circumstances, I deem it proper to grant this revision petition and set-aside the order passed by the trial court with the direction to the petitioner to execute undertaking before the Munsiff, Budgam, within one week to the effect that in case he fails in the suit he has to compensate the plaintiff by way of damages. Revision petition disposed of along with all connected CMPs.