Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 555 (JK)

Rishi Kumar v. Sham Lal and Ors.

2012-09-06

MUZAFFAR HUSSAIN ATTAR

body2012
(Oral) Petitioner instituted a civil original suit, wherein he prayed for issuance of decree of permanent prohibitory injunction against the respondents on the ground that he is in possession of land measuring 02 marlas falling under Khasra No. 360min situated at Village Marh, Drabi, Tehsil and District Jammu. Along with the suit, an application seeking ad-interim injunction was also filed. Trial court vide its order dated 14.05.2010 directed for maintenance of status quo on spot with regard to the possession of the suit property. 2. Petitioner filed series of applications seeking implementation of the trial court order on the ground that respondents have forcibly taken over the possession of the suit property and have started raising construction over it. Application filed for implementation of the aforesaid trial court order was allowed and the police concerned was directed to implement the court order in its letter and spirit. 3. Learned counsel for the petitioner made reference to the report of the police concerned, wherein it is alleged that respondents were raising construction on the suit property. 4. Since as per the claim of the petitioner, respondents did not obey the trial court order, in order to safeguard his interest, an application seeking appointment of Receiver of the suit property was filed before the trial court. The said application was dismissed vide order dated 18.05.2012, which order was challenged before the 1st Appellate Court and the 1st Appellate court dismissed the appeal of the petitioner vide order dated 31st July, 2012. 5. At paragraph 7 of the order of the trial court dated 18.05.2012, it is stated that as per the claim of the petitioner, respondents got the possession of the suit property forcibly. Learned counsel for the petitioner submitted that petitioner has been allegedly dispossessed after institution of the suit from the suit property. Learned counsel submitted that petitioner made all out efforts by approaching trial court by filing series of applications and even an application under Order XXXIX Rule 2 (A) of Code of Civil Procedure was filed, but since desired results were not there, so petitioner was constrained to file application seeking appointment of the Receiver of the suit property. 6. Respondents have taken stand before the trial court that they were in possession of the suit property even before the institution of the suit. 6. Respondents have taken stand before the trial court that they were in possession of the suit property even before the institution of the suit. The question of fact has arisen and is to be determined by the court either in the suit or in the interlocutory application filed under Order XXXIX Rule 2(A) of the CPC as to whether petitioner was dispossessed after institution of the suit from the suit property or not. Petitioner can either amend suit and seek decree for recovery of possession, or he can file application seeking restoration of the possession of the suit property. But even in such application court has to conduct a limited enquiry to return a finding as to whether after institution of the suit and in utter disregard to the order of status quo, petitioner has been dispossessed from the suit property. If the trial court finds after conducting limited enquiry that in breach of order of status quo, petitioner has been dispossessed, then it has power to order for restoration of possession even without petitioner seeking amendment of the suit. 7. It is settled position in law that a person who is dispossessed during the pendency of the suit in which an order of injunction has been passed, in breach of injunction order, then on proof thereof, the trial court, if approached by the aggrieved party in this behalf, shall have to deal with such claim in accordance with law and on such proof, restore the possession. 8. The order dated 14.05.2010 passed by the trial court providing maintenance of status quo on spot with regard to the possession of the suit property, did not place restraint on party to raise construction. If construction is raised, that would not be in breach of the order of the trial court. 9. For appointing Receiver, an exceptional and extraordinary case is to be made out by the party, who approaches the court for grant of such a relief. A person in possession ordinarily cannot be dispossessed by appointing Receiver. 10. The civil courts are not precluded from appointing Receiver, but in such circumstances, it has to record satisfaction about the exceptional circumstances appearing in the case. 11. Learned trial court and appellate court have dealt with the matter strictly in accordance with law. Appellate court has even given liberty to the petitioner for filing fresh application seeking appointment of the Receiver. 11. Learned trial court and appellate court have dealt with the matter strictly in accordance with law. Appellate court has even given liberty to the petitioner for filing fresh application seeking appointment of the Receiver. The order impugned, in this petition, cannot be said to be illegal and arbitrary. 12. For the aforementioned circumstances, no interference with order impugned is called for. This petition along with all connected CMA(s) is, accordingly, dismissed in limine.