Jammu & Kashmir High Court - Srinagar Bench
Nazir Ahmad Dar And Another vs Muzaffar Ahmad Wani & Others on 6 April, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
S.No.80
Supplementary
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM(M) 55/2023, CM No.1798/2023 &
Caveat No.669/2023
Nazir Ahmad Dar and Another
... Petitioner(s)
Through: -Mr.M.A.Qayoom, Advocate.
Vs.
Muzaffar Ahmad Wani & Others
...Respondent(s)
Through: -Mr. Parvaiz Lone, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
06.04.2023
1) The petitioners have challenged order dated 28.03.2023 passed by learned Principal District Judge, Pulwama, whereby, on an application filed by the respondents, the learned District Judge has clarified its earlier interim order dated 10.03.2023, thereby permitting the use of Tractor with trolley for carrying the construction material to the residential house of the respondents through the pathway existing on spot subject to certain conditions laid down by the trial Court.
2) It appears that the petitioners herein/plaintiffs have filed a suit for permanent injunction against the respondents/defendants seeking a decree of permanent injunction, thereby restraining the defendants from CMM No.55 of 2023 Page 1 of 8 interfering in their land measuring 10 Marlas falling under survey No.837 situated at Malikpora Pulwama. A further direction upon the defendants has been sought restraining them from carrying heavy loaded vehicles from the suit land.
3) It seems that the dispute between the plaintiffs and the defendants relates to a passage leading from link road Malikpora to the land where defendant No.1 has constructed a two storied residential house on a portion of his land. While the plaintiffs claim that width of the said passage is only about 5 feet and if the defendants are allowed to ply heavy loaded vehicles on the said passage, it will cause damage to the property of the plaintiffs, which is located on the periphery of the passage, the defendants on the other hand claim that the said passage is the only pathway leading to their house and that the plaintiffs by parking their private vehicles over the passage are causing hurdles for the defendants in using the said passage.
4) Learned Munsiff Pulwama, before whom the suit is pending, decided the application for grant of interim relief filed by the plaintiffs vide order dated 25.02.2023. While vacating its ex parte interim direction, whereby the defendants were restrained to ply heavy vehicles on the passage leading to the land under survey No.837, situated at Malikpora Pulwama and holding that ingredients for grant of interim injunction in favour of plaintiffs are not satisfied, the learned trial Court disposed of the application and passed the following directions: CMM No.55 of 2023 Page 2 of 8
i. The defendants/non-applicants shall file an indemnity bond that they indemnify any damage occurring to the retaining walls constructed by the plaintiffs/applicants by plying the vehicles.
ii. Defendants/non-applicants will not ply any vehicle except tractor for carrying the construction material. iii. Plying of heavy vehicles like dumper, dippers or any other similar vehicle shall be strictly prohibited in view of the report of the commission.
iv. Defendants/non-applicants will also deposit a cheque of Rs 50,000/- before the court and a statement relating to the bank account regarding the sufficiency of the amount as security in case any damage is occurred while carrying the tractors to the retaining wall/fencing of the plaintiffs/applicants.
5) The aforesaid order came to be challenged by the plaintiffs in an appeal before the Court of learned Principal District Judge, Pulwama. On 10.03.2023, the learned Appellate Court passed an interim order, whereby the defendants were directed to comply with the conditions imposed vide order dated 25.02.2023 passed by the trial Court with a further direction to the defendants that they would not use any heavy vehicle which includes Dumper, Tipper, Truck or any other such like vehicle for carrying any construction material to their residential house which is under construction, till final disposal of the appeal.
6) After passing of the aforesaid order by the learned Appellate Court, it seems that the defendants moved an application before the trial Court seeking implementation of order dated 25.02.2023 passed by the trial Court, as the Appellate Court had directed the defendants to comply with the conditions laid down in the said order. Learned trial Court vide its order dated 13.03.2023 observed that implementation of the order would involve interpretation of the scope of direction passed CMM No.55 of 2023 Page 3 of 8 by the Appellate Court in order to ascertain as to whether the Tractor would come within the restrictive conditions laid down by the Appellate Court.
7) In the aforesaid backdrop, the defendants/respondents filed an application before the Appellate Court seeking clarification of order dated 10.03.2023. The said application was opposed by the appellants/plaintiffs, inter alia, on the ground that clarification sought by the respondents/defendants, in fact, amounts to seeking review of order dated 10.03.2023 passed by the Appellate Court. On this application of the defendants/respondents herein the learned Appellate Court has passed the impugned order, thereby clarifying that respondents are permitted to use the Tractor with trolley for carrying the construction material to their residential house through the pathway existing on spot subject to the conditions contained in order dated 25.02.2023 passed by the trial Court.
8) The petitioners have challenged the impugned order passed by the Appellate Court primarily on the ground that clarification given by the Appellate Court, in fact, amounts to review of its earlier order, which could not have been done on an application of the defendants seeking clarification of the order. It has been submitted that without considering the objections of the appellants/petitioners the impugned order came to be passed by the learned Appellate Court which is not sustainable in law. It has been contended that under the garb of the CMM No.55 of 2023 Page 4 of 8 impugned order, the Appellate Court has modified its own order dated 10.03.2023, which it had no jurisdiction, power or competence to do. It has been submitted that if the defendants/respondents are allowed to ply the loaded Tractor with trolley on the pathway leading from main link road to the house of the defendants, irreparable damage will cause to the drainage pipes and the retaining wall of the petitioners and that this aspect of the matter has not been taken into account by the Appellate Court.
9) Respondents, who are on caveat and are represented by their counsel, have refuted the contentions raised by the petitioners. It has been submitted that the learned Appellate Court was well within its jurisdiction to pass the impugned order, whereby he has only clarified his earlier direction and has not modified the same.
10) I have heard learned counsel for the parties and perused the record.
11) The main issue to be considered in this case is, as to whether the impugned order dated 28.03.2023 amounts to review or modification of order dated 10.03.2023 or it is clarificatory in nature. For determination of this issue, we need to have a look at the relevant directions issued by the Appellate Court in its order dated 10.03.2023. The same are reproduced as under:-
" In view of the above, the respondents are directed to comply the conditions imposed by the trial court contained in the order dated 25.02.2023, impugned herein strictly with further CMM No.55 of 2023 Page 5 of 8 direction to the respondents that they would not use any heavy vehicle which includes Dumper, Tipper, Truck or any other vehicle like so for carrying any construction material to their residential house which is under construction as reported by the parties till the final disposal of the appeal..."
12) From a perusal of afore quoted directions issued by the learned Appellate Court it is clear that respondents, besides having been directed to comply with the directions imposed by the trial Court in its order dated 25.02.2023, have been further directed not to use any heavy vehicle including the Dumper, Tipper or Truck or any other such like vehicle for carrying construction material to their house. What has been prohibited by the aforesaid direction is carrying of construction material to the house of the respondents through heavy vehicles including Dumper, Tipper, Truck etc. There is no blanket direction issued by learned Appellate Court prohibiting the respondents from taking construction material to their residential house by all modes of transport. The only prohibition imposed upon the respondents is relating to carrying of construction material through heavy vehicles which in other words means that the respondents are free to carry construction material through light vehicles or any other mode not prohibited by the Appellate Court.
13) The learned Appellate Court, upon an application made by the respondents, has clarified the above aspect of the matter by providing that the respondents are permitted to use Tractor with trolley for carrying the construction material. While providing so, the learned Appellate Court has relied upon the judgment of the Supreme Court CMM No.55 of 2023 Page 6 of 8 according to which a Tractor with trolley falls in the class of light motor vehicles. Even if the aforesaid clarification would not have been issued by the Appellate Court, still then from order dated 10.03.2023 it could easily be inferred that the Appellate Court has not restrained the respondents from carrying the construction material to their house through the pathway by any mode other than heavy vehicles, which would include the light motor vehicle as well. Therefore, it cannot be stated that the Appellate Court has, by issuing the impugned clarification, modified its earlier order or reviewed the same. The Appellate Court has only stated the obvious in its impugned order dated 28.03.2023.
14) So far as scope of power this Court under Article 227 of the Constitution of India is concerned, the same has to be exercised sparingly only to keep the subordinate Courts within bounds of their authority. Such power has to be exercised only when the inferior Court acts arbitrarily or where the inferior Court acts in excess of the jurisdiction vested in it or when the inferior Court fails to exercise jurisdiction vested in it. It is only if finding recorded by the inferior Court is perverse in such a sense that no prudent person having the knowledge of law would arrive at such a finding that the High Court would interfere in exercise of its power under Article 227 of the Constitution. Such power cannot be exercised for correcting errors of fact or law or when there is no manifest failure of justice. CMM No.55 of 2023 Page 7 of 8
15) In the instant case, as already noted, the learned Appellate Court while passing impugned order has not committed any jurisdictional error nor has it acted with any material irregularity so as to warrant interference of this Court in exercise of its power under Article 227 of the Constitution.
16) For the fore going reasons, the impugned order passed by the learned Appellate Court does not call for any interference. The petition lacks merit and is dismissed accordingly. Caveat No.669/2023 also stands discharged.
(SANJAY DHAR) JUDGE SRINAGAR 06.04.2023 Sarveeda Nissar Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No CMM No.55 of 2023 Page 8 of 8