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2011 DIGILAW 159 (JK)

Jan Mohd. Wani v. Farooq Ahmad Wani

2011-04-01

MUZAFFAR HUSSAIN ATTAR

body2011
1. The respondent instituted civil original suit against the petitioner which is pending trial on the file of learned Munsiff, Sub Registrar, Srinagar. The claim of the respondent in the suit was that he is the tenant of petitioner and prayed for passing of a decree of appropriate injunction restraining the petitioner from dispos­sessing the plaintiff from the suit property. 2. The written statement has been filed by the petitioner in which stand is taken that in terms of agreement dated November 11, 2002 the respondent-plaintiff surrendered possession of the room to the petitioner in the month of July, 2009 in lieu of arrears of rent for seven months which the respondent-plaintiff was not able to pay. 3. The learned trial Judge passed an ex parte interim order whereby the petitioner was temporarily restrained from causing any sort of interference into the possession of the suit shop till next date of hearing. 4. Objections to the injunction application have also been filed in which the stand taken in the written statement has been re-iterated. 5. The respondent-plaintiff filed an application before the trial Judge praying therein that status quo ante be ordered to be maintained on the alleged ground that, after the issuance of injunction order, the respondent-plaintiff has been dispos­sessed from the suit property. 6. The learned trial Judge, without considering the objections and written statement of the petitioner and without finally deciding the injunction application, passed order dated November 20,2009 wherein and whereunder the petitioner has been directed to restore the possession of the suit shop which, in view of the learned trial Judge, was existing on the date of filing of the suit, viz., August 3, 2009. This application has been disposed of. After this order, another order has been passed by the learned trial Judge on December 14,2009 whereunder Nazir Tamilat has been directed to go on spot and implement the order of the court dated November 20, 2009. It is these orders which have been challenged in this revision petition. 7. Heard learned counsel for the parties and considered the matter. 8. The order dated November 20, 2009 has been passed illegally and there is material irregularity inasmuch as, without affording the petitioner an opportunity to respond to the application and without finally deciding the injunction applica­tion, the trial Judge has directed maintenance of status quo ante. 7. Heard learned counsel for the parties and considered the matter. 8. The order dated November 20, 2009 has been passed illegally and there is material irregularity inasmuch as, without affording the petitioner an opportunity to respond to the application and without finally deciding the injunction applica­tion, the trial Judge has directed maintenance of status quo ante. The petitioner has been prevented even to file objections to the said application. 9. The courts have ample power to order for maintenance of status quo ante, but, before passing such an order, the party praying for issuance of such direction has to satisfy the court that he has extraordinary strong case in his favour. The court has to record finding that an extraordinary case is made out for directing for maintenance of status quo ante. The court, in some circumstances, may have to conduct enquiry also. The order for maintenance of status quo ante is normally issued by the court when it is shown that the court order has been observed in breach and there is willful disobedience of the said order. The learned trial Judge has not considered any of the aspects and settled norms which provide for issuance of such orders. The order has been passed without affording opportunity of hearing. Even no cogent reason is recorded by learned trial Judge. The order of status quo ante, in certain circumstances, partakes character of a decree. Unless all the essential re­quirements are not considered and dwelt upon, an order of status quo ante cannot be issued. In legal fiction, the direction to maintain status quo ante can create a tricky situation, non-suiting a party in turn. Care and caution of highest degree is to be exhibited by the learned Judges while considering and deciding such important issues. 10. The order dated November 20,2009, in the facts and circumstances of this case, is without jurisdiction and deserves to be set aside. On the same reasoning the order dated December 14,2009 also deserves to be set aside. 11. For the above-stated reasons this revision petition is allowed and orders dated November 20, 2009 and December 14, 2009 are set aside. The learned trial Judge, however, is at liberty to pass appropriate orders in accordance with law after affording opportunity of hearing to the parties. Records be sent back to the concerned courts.