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2021 DIGILAW 119 (JK)

Ghulam Nabi Mir v. Nisar Ahmad Mir

2021-03-25

VINOD CHATTERJI KOUL

body2021
ORDER : Vinod Chatterji Koul, J. 1. In this revision petition, challenge is thrown to the order dated 18.03.2021, passed by learned Munsiff/Civil Judge (JD), Bandipora, (for short "Trial Court") in case titled Gh. Nabi Mir v. Nisar Ahmad Mir and Ors., whereby application of the petitioner/plaintiff filed under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, seeking temporary injunction, has been dismissed. This order of Trial Court is challenged in this revision petition, precisely, on the grounds that the Trial Court has not appreciated the pleadings put forth by the petitioner; there was nothing on record to show that the property was partitioned by the parties either by way of family settlement or partition deed; it was the case of the plaintiff that parties were living separately; the Trial Court, while dealing with the application seeking temporary injunction, has misdirected itself and has failed to appreciate the case set up by the petitioner; the Trial Court while passing the impugned order has held that the petitioner-plaintiff has failed to add Firdous Ahmad Mir as party, though petitioner has filed an application seeking his impleadment in the suit which has not been decided; there was otherwise no record to show that Firdous Ahmad Mir was in possession of one shop; it is settled position of law that the possession of one co-sharer is considered to be possession of all co-sharers; the Trial Court while passing the order impugned has exercised its jurisdiction illegally on non-existent grounds in a slipshod manner and has, thus, caused failure of justice. 2. Heard learned counsel for petitioner and perused the record on the file. 3. As regards the question of maintainability of this petition under Section 115 CPC, learned appearing counsel for petitioner has submitted that on the grounds stated in the memo of revision, there is no bar for maintaining this revision petition. In support of her arguments, she relies upon the judgments rendered in the cases of Abdul Salam Wani and Ors. v. Mohammad Subhan Khan and Ors. (CR No. 73/2009), decided on 05.06.2010, State of J & K and Ors. v. Ghulam Rasool, decided on 02.09.1997, Subash Chander v. Mata Vaishno Devi Shrine Board, decided on 01.12.2006 and Abdul Rehman Bhat v. Ali Mohammad Manroo, decided on 08.07.1998. 4. v. Mohammad Subhan Khan and Ors. (CR No. 73/2009), decided on 05.06.2010, State of J & K and Ors. v. Ghulam Rasool, decided on 02.09.1997, Subash Chander v. Mata Vaishno Devi Shrine Board, decided on 01.12.2006 and Abdul Rehman Bhat v. Ali Mohammad Manroo, decided on 08.07.1998. 4. It may not be out of place to mention here that an Order, passed under Order XXXIX Rue 1 & 2, CPC, rejecting or allowing application for grant of temporary injunction, is appealable under Order XLIII of CPC. Appeal is provided under clause "r" of Rule 1 of the said Order, which reads as under; 1. Appeals from order:-An appeal shall lie from the following orders under the provisions of Section 104, namely (r) an order under Rule 1, Rule 2, Rule 2(a), Rule 4 or Rule 10 of the Order XXXIX. 5. So, it is clear from the provisions of Order XLIII, CPC, that the order, whereby an application has been rejected and grant of temporary injunction refused, is appealable. Section 115 CPC, in terms whereof revision petition on hand has been filed, provides grounds and reasons for preference of revision, which are: 115. Revision:-1. The High Court may call for the record of any case which has been decided by any Court subordinate to the High Court and in which no appeal lies thereto, and if such subordinate Court appears. (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, or (d) to have caused failure of justice. 6. Sub-section (1)(a), (b), (c), & (d) provide the situations when a revision would lie before the High Court, and it is clear from the provisions of Sub-section 1 of Section 115 CPC that the High Court may call for the record of any case which has been decided by any Court subordinate to it in the cases stated in clauses (a) to (d), when appeal is not provided. The revision does not, therefore, lie against an order passed under Order XXXIX CPC, as the said order is appealable. 7. In the present case, Appeal is provided under the provisions of Order XLIII Rule 1. The revision does not, therefore, lie against an order passed under Order XXXIX CPC, as the said order is appealable. 7. In the present case, Appeal is provided under the provisions of Order XLIII Rule 1. The learned counsel for petitioner has in support of her contentions stated that even if the appeal is provided, this revision is maintainable. In support of this contention, she has relied upon the judgment passed by this Court in Abdul Salam Wani and Ors. v. Mohammad Subhan Khan and Ors., decided on 05.06.2010. Perusal of the said judgment reveals that in the said case, after the application seeking temporary injunction was rejected, the aggrieved party filed an Appeal before the learned District Judge and upon the rejection/dismissal of said appeal, the order passed in the appeal was assailed in the revision. Insofar as the instant case is concerned, the petitioner has without availing remedy of appeal, which was available to him, has directly filed the revision petition. The judgments referred to by the learned counsel for petitioner in support of her contention that the revision petition is maintainable, on being examined and considered, do not support her contention or lend any support inasmuch as the said judgments are not applicable to the facts and circumstances of the present case, as this case does not fall within the provisions of Section 115 CPC, warranting exercise of jurisdiction under the said Section. The appropriate remedy for the petitioner was, in case aggrieved of the order impugned, to file an Appeal before the Court of learned District Judge, Bandipora. 8. In the above backdrop, I do not find any merit in the submission made by the learned counsel for petitioner to hold that this revision is maintainable against the order impugned. 9. Viewed in the above context, I do not find any merit in the instant revision petition and the same is, accordingly, dismissed along with connected CM(s).