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2012 DIGILAW 28 (JK)

Ghulam Rasool Zargar v. State & Ors.

2012-02-04

MANSOOR AHMAD MIR

body2012
1. Petitioner has invoked the writ jurisdiction of this court by the medium of instant writ petition and sought writ of certiorari quashing the order dated 22.11.2011 passed by the Additional District & Sessions Judge, Anantnag-respondent No.2 in a suit tilted Mohammad Abdullah Dar v. Gh. Rasool Zargar, whereby right for filing the written statement came to be closed and the plaintiff was directed to lead evidence in support of his plaint. The writ petition is not maintainable and merits to be dismissed in limini for the following reasons. 2. Mohammad Abdullah Dar-respondent No.3 filed the civil suit in terms of the mandate of Order 37 of the Civil Procedure Code (for short CPC) before the Principal District Judge, Anantnag for disposal under law. Petitioner appeared in response to the notice and sought leave to defend the suit in terms of Order 37 Sub Clause-5, which was allowed and the suit was numbered as regular suit in terms of Order 37 Rule 7 CPC and the defendant-petitioner was directed to file written statement on or before next i.e, 22.11.2011. Defendant failed to file the written statement in terms of the said order and resultantly the impugned order came to be passed in terms of Order 8 Rule 10 CPC. Feeling aggrieved of the said order instant petition came to be filed on the grounds taken in the writ petition. 3. Order of the civil court/trial court can be questioned in case order is passed without jurisdiction, competence and in excess of jurisdiction. The impugned order passed by the trial court is in accordance with the provisions of the CPC and it cannot be said that the order is without jurisdiction or in excess of jurisdiction, thus writ petition is not maintainable. Apex court in case titled Shalini Shyam Shetty v. Rajendra Shankar Patil reported as 2010 AIR SCW 6387 and case titled Kokkanda B. Poondacha & Ore. v. K. D. Ganapathi & anr reported as AIR SCW 2011,1737 held that invoking of writ or supervisory jurisdiction against any order is only permissible when subordinate court has acted without or in excess of jurisdiction not otherwise and the same view has been held by this court in case OWP No. 1364/2011 titled Abdul. Rehman Dar & ore. v. Showkat Ali Bhat & ors. 2011 (4) JKJ HC-334 4. Rehman Dar & ore. v. Showkat Ali Bhat & ors. 2011 (4) JKJ HC-334 4. In the given circumstance, writ petition merits to be dismissed however, petitioner is at liberty to file application for recalling of the order before the trial court if permissible under law or seek any other remedy if available under law. 5. Dismissed accordingly alongwith all CMPs.