Jammu & Kashmir High Court - Srinagar Bench
Gulla Khan And Ors vs Ghulam Nabi Wani on 5 June, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
143
Supplementary
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM(M) No. 190/2024
CM No. 3398/2024
Gulla Khan and Ors. ..... Petitioner (s)
Through: Ms. Rubia Husain, Adv.
V/s
Ghulam Nabi Wani ..... Respondent(s)
Through:
Coram:
Hon'ble Mr. Justice Sanjay Dhar, Judge.
ORDER
05.06.2024 The petitioners have challenged order dated 30.04.2024 whereby the learned Principal Sessions Judge, Bandipora while hearing the appeal against the order dated 19.01.2024 passed by the learned trial Magistrate (Sub Judge Senior Division) Bandipora directed appointment of Commissioner to furnish status report with regard to dimensions of fire gap existing between the properties of the parties and besides this, the Commissioner has been also directed to inform the court whether there are any rules and regulations framed by the Government with regard to leaving of fire gap.
Learned counsel for the petitioner has submitted that it was not open to the learned appellate court to direct appointment of the Commissioner as it amounts to collection of evidence which an appellate court cannot do. It has been further submitted that the appellate court has to decide the appeal on the basis of the material available before the trial court and not to collect further material and in any case function of searching of rules and regulations cannot be delegated by the court to a local Commissioner.
Issue notice to the respondent subject to taking of necessary steps by the petitioner within one week.
In the meantime, the impugned order passed by the learned appellate court is stayed. It shall, however, be open to the learned appellate court to proceed ahead with the hearing of the appeal without seeking report of the Commissioner.
List on 02.08.2024.
(Sanjay Dhar) Judge Asif Gull SRINAGAR I attest to the accuracy and authenticity of this document 05.06.2024 06.06.2024 10:11 Aasif