Jammu & Kashmir High Court
Kuldip Singh & Ors vs Kuldip Singh And Ors Have Called In ... on 15 April, 2013
Author: Muzaffar Hussain Attar
Bench: Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. CIMA No. 96 OF 2011 Kuldip Singh & ors. Petitioners Chamil Singh and ors Respondent !Mr. V. R. Wazir, Sr. Adv ^Mr. Vikram Sharma, Adv Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 15.04.2013 :J U D G M E N T :
CIMA NO: 96/2011 CMA NO: 192/2011 &Cross Objection No: 7566/2011 (Oral) Contesting defendants in Civil Original Suit titled Chamil Singh and ors versus Kuldip Singh and ors have called in question the order of the Trial court to the extent it directs them to file an undertaking to maintain accounts of the income and furnish the same to the court till final disposal of the suit.
The plaintiffs in the suit have filed the cross objections in which they have challenged the order dated 07th December, 2010 in its entirety.
Learned counsel for the appellants-contesting defendants submitted that the construction of the Hotel has been completed two years back and Hotel is functioning. Learned counsel also submitted that plaintiffs have not made any claim to the business of the Hotel in the Suit as such the directions contained in the paragraph 23 should not have been issued by the learned Trial Judge.
Learned counsel for the plaintiff submitted that at the time impugned order dated 07th December, 2010 was passed, written statement was not filed by contesting defendants which fact is admitted by the learned Trial Judge at paragraph 18 of the impugned order. Learned counsel submitted that without having pleadings from the defendants, ex-parte injunction Order could not have been vacated and in fact Suit of the plaintiff should have been decreed.
Learned counsel for the defendants-appellants submitted that after passing the impugned order, written statement has been filed.
It prima facie appears that learned Trial court should have not vacated the ex-parte injunction Order without asking the contesting defendants to file the written statement. Learned Trial court at paragraph 18 of the impugned order has admitted that the defendants have not filed the written statement but have claimed physical possession and it is further recorded the same is admittedly with them. This final conclusion should not have been recorded while disposing of the interim injunction application. For arriving at proper conclusion, Trial court had to frame issue and try the same and record the finding about actual physical possession at conclusion of trial.
The court is not prevented in recording, prima facie findings in respect of the possession of the property and for that court has to refer to the material placed on record, discuss the same and record the reasons in support of such a prima facie finding.
Admittedly there was no claim made by the claimants in respect of the Hotel constructed by the defendants-appellants, so the direction could not be issued to maintain the accounts of the income and furnish the same to the court. The trial court is duty bound to refer to material placed on record to take a prima facie view that one or the other party is in possession. Principles underlying Order 39 Rule 1 and 2 of CPC are to be followed in all circumstances. For issuance or vacating an interim order, trial court is duty bound in law to refer to the pleadings of the parties and material placed on record and then pass orders.
The trial court has failed to follow the settled legal principles of law in deciding the injunction application.
For the above stated reasons, this Appeal and Cross Objections are allowed. Interim order dated 07th December, 2010 is set aside. Matter is remitted back to learned Trial court who will be at liberty to re-consider the whole issue and pass appropriate orders after hearing the parties.
Disposed of alongwith connected CMA(s).
Registry to send the record back.
Jammu. (Muzaffar Hussain Attar) 15.04.2013 Judge Imtiyaz