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2012 DIGILAW 386 (JK)

Director NIT & Ors. v. Shahbaz Ali Ahmad & Ors.

2012-07-09

MANSOOR AHMAD MIR

body2012
1. The challenge in this writ petition is to order dated 02.07.2011, whereby interim relief came to be granted in favour of plaintiff-respondent no. 1 herein, and orders dated 01.08.2011, 28.09.2011 and 28.01.2012, passed by the learned Sub Judge (CJM), Srinagar, in suit titled as Shahbaz Ali Ahmed v. Director NIT & others; and order dated 20.04.2012, passed by the learned Additional District Judge, Srinagar, whereby the appeal filed by the defendants-writ petitioners herein against the said orders came to be dismissed, on the grounds taken in the writ petition. 2. Plaintiff-respondent no. 1 herein filed a suit before the learned Sub Judge (CJM), Srinagar, along with an application for grant of interim relief against the defendants-writ petitioners herein, and, vide order dated 02.07.2011, interim direction came to be granted, followed by orders dated 01.08.2011, 28.09.2011 and 28.01.2012. Feeling aggrieved, defendants-writ petitioners herein questioned the same by the medium of appeal before the learned Additional District Judge, Srinagar, which was dismissed vide order dated 20.04.2012. Hence this writ petition. 3. By the medium of this petition, defendants-writ petitioners herein have questioned all these orders on the ground that the same have been passed without hearing them. It is contended that the said orders are illegal because the trial court, as well as appellate court, has not discussed the three principles of law, i.e., prima facie case, balance of convenience and irreparable loss. 4. While going through the memo of appeal, one comes to an inescapable conclusion that the petitioners have questioned the said orders on the ground of being illegal and not in accordance with law, thereby both the courts below have exceeded the jurisdiction. 5. Civil Procedure Code has gone through a sea change. Petitioners, inspite of being conscious of the face that the remedy of revision is barred, have questioned the orders by the medium of writ petition. Virtually, the writ petition is in the nature of revision and, if such a practice is adopted and allowed, the same will render the aim and object of amendment incorporated in the Code infructuous and meaningless. No doubt this Court has vast powers in terms of the mandate of Articles 226 and 227 of the Constitution of India, but, at the same time, these powers are to be exercised very cautiously, carefully and in rarest of rare cases. No doubt this Court has vast powers in terms of the mandate of Articles 226 and 227 of the Constitution of India, but, at the same time, these powers are to be exercised very cautiously, carefully and in rarest of rare cases. The trial court, after examining the entire case, passed the orders impugned herein. The same, therefore, cannot be made subject matter of writ jurisdiction. 6. The trial Court, as well as appellate court, after examining the pleadings of the parties, has granted the relief in favour of defendant-respondent no. 1 herein. Therefore, the same cannot be said to be without, or in excess of, jurisdiction. 7. This Court in Abdul Rehman Dar v. Showkat Ali Bhat, OWP No. 1364/2011, while dismissing the writ petition at the admission stage vide judgment and order dated 09.11.2011 has laid down the same principles. The said judgment squarely applies to the instant case. 8. It appears that the trial court has not decided the application for grant of interim relief finally. Order dated 02.07.2011 is an exparte order, yet to be made absolute. The trial court has passed the impugned orders in an application filed under Order 39 Rule 3(A) and even order dated 02.07.2011 was not subject matter of appeal before the appellate court. 9. In view of the above discussion, this writ petition merits to be dismissed. Accordingly, it is dismissed in limine along with all CMPs. However, this order shall not prevent the petitioners from seeking appropriate remedy.