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2012 DIGILAW 485 (JK)

Omkar Mehra v. Hira Lal & Ors.

2012-08-06

MANSOOR AHMAD MIR

body2012
1. This Civil First Miscellaneous Appeal is directed against order dated 09th May, 2012 (for short 'impugned order') passed by the Learned Principal District & Sessions Judge, Srinagar, in an application moved by the plaintiffs for directing the police to implement order dated 24.07.2004 in a suit titled Shri Omkar Mehra and others v. Shri Hiralal and others, on the grounds taken in the memo of appeal. 2. It appears that a suit for partition, perpetual injunction and possession was filed before the Learned Principal District and Sessions, Judge, Srinagar. Along side the suit, an application was made for grant of ad interim relief, which was granted and by order dated 24.07.2004 the parties were directed to maintain status quo. The order was to remain in force till next date and thereafter, it stands extended in terms of orders dated 26.07.2004 and 14.08.2004 till next. The case was posted for 17.08.2004. On the said date, the interim direction was not extended. It was only on 26.05.2007 that the status quo order was extended with effect from the said date. It is axiomatic, therefore, that the order of status quo was not in operation from 17.08.2004 to 26.05.2007. 3. During the pendency of the suit, the plaintiffs moved an application on 20.05.2008 for arraying one Ghulam Mohidin Khanday S/O Mohammad Ramzan Khanday R/O Gogjibagh, Srinagar, as party/defendant in the suit, which was granted in terms of order dated 31.10.2011. Thus the defendant, respondent No. 6 became party to the lis in terms of order dated 31.10.2011. The plaintiffs had specifically averred in the application for impleadment filed on 20.05.2008 that respondent No. 6 had purchased portion of the subject matter of the suit property and has started to raise construction thereon and had thus changed the nature of the suit property by raising construction on spot. It is apt to reproduce paragraph 5, which reads as under: "That since the Ghulam Mohidin Khanday have come in possession of suit land and is now trying to dispose off the same to some other person and have also changed the nature of suit property by raising construction on spot." 4. On 24.04.2012 the plaintiffs have moved an application for directing the police concerned to implement the order dated 24.07.2004. On 24.04.2012 the plaintiffs have moved an application for directing the police concerned to implement the order dated 24.07.2004. The trial Court while determining the said application has made certain observation which has the effect of deciding the application for interim relief for grant of temporary injunction which was moved on 24.07.2004 and is still pending on the dockets of the trial Court. Now, the question that arises for consideration is whether the application was to be granted or otherwise. While going through the records, it becomes evident that order dated 24.07.2004 was not in force and in fact the parties were directed to maintain status quo with effect from 26.05.2007. So, if at all the direction sought was to be granted, it had to be granted on the basis of order dated 26.05.2007 and not on the basis of order dated 24.07.2004. That apart the plaintiffs have admitted that the defendant No. 6 has raised the construction and the question is whether the application was maintainable for directing the police to implement the order of status quo. Without expressing any opinion in this regard, I leave this question to be determined by the trial Court at the appropriate stage, if required. 5. In the aforementioned backdrop, I am of the view that the order passed by the learned Principal District & Sessions Judge, Srinagar, does not sustain. It is set aside and also dismiss the application moved by the plaintiffs dated 24.04.2012 with liberty to them to file a fresh one if so advised. The trial Court is directed to decide the main application i.e. application for grant of ad interim relief, which is still pending on the dockets from the last more than eight years. Accordingly, this Civil First Miscellaneous Appeal is disposed of as indicated hereinabove. Any observations made by the trial Court in the impugned order or by this Court shall cause prejudice to the rights of the parties in any way. 6. Registry is directed to remit the record forthwith along with a copy of this order to the trial Court.