Jammu & Kashmir High Court
Sat Pal vs Shilpa Rani And Ors. on 3 May, 2019
Equivalent citations: AIRONLINE 2019 J AND K 264
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
OWP No.1887/2018 & IA No.1/2018
Date of Judgment: 03.05.2019
Sat Pal Versus Shilpa Rani and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner(s) : Mr. R.K.S Thakur, Advocate.
For respondent(s) : Mr. J.S Jasrotia, Advocate.
i) Whether to be reported in : Yes / No
Digest/Journal/Media
ii) Whether to be reported in : Yes / No
Press/Media
1. This petition has been filed by the petitioner for quashing of judgment and decree passed by learned 2nd Additional District Judge, Jammu by virtue of which the appeal of the petitioner against the orders dated 14.08.2018 and 18.08.2018 of learned City Judge Jammu, has been dismissed.
2. The petitioner has challenged the order of the Appellate Court on the ground that the judgment is contrary to law and the appellate court has not considered all the pleas and grounds which were pleaded in the memo of appeal. It is contended that the appellate court has not exercised the jurisdiction in accordance with law and respondent No.2 had filed a suit before the City Judge, Jammu, without disclosing the factum of pendency of another suit filed by the petitioner which is pending before learned 2nd Munsiff, Jammu. The petitioner is one of the co-sharer of the land left behind by his predecessors and same was jointly owned by the petitioner as well as respondent Nos.3 and 4. The OWP No.1887/2018 Page 1 of 6 respondent Nos.3 and 4 without effecting partition of the land have sold the land to respondents No.1 and 2.
3. I have given my thoughtful consideration to the whole aspect of the matter as also the rival contentions of learned counsel for the parties.
4. Learned counsel for the petitioner has placed reliance on a judgment passed by Hon'ble Supreme Court of India in Civil Appeal No. 5102 of 2000 titled "A. Venkataubbiah Naidu Vs. S. Challappan", reported as 2000 AIR (SC) 3032, wherein it has been held that any order passed under Order 39 Rule 1 CPC is appealable before the appellate court.
5. He has also placed reliance on a Full Court Judgment of our own High Court reported as 1982 AIR (J&K)124 titled "M/s Astral Traders Vs. M/s Haji Mohammad Shaban Dar and ors.", wherein it is held that the appeal against the order passed under Order 39 Rules 1, 2 & 4 CPC is maintainable in terms of Order 43 Rule 1(r) CPC.
6. On the contrary, learned counsel for the respondents has relied upon a judgment passed in "K.K Puri and ors. Vs. A.K Puri and ors." reported in 1994 AIR (J&K) 25, wherein it has been held that any order of injunction passed under order 39 Rule 1 & 2 CPC which is subject to objections from other side or valid till next date, the appeal should not be entertained against such orders unless the order is manifestly perverse or without jurisdiction or bias of trial is apparent on the face of record.
7. From the perusal of the documents annexed with the petition, it is evident that respondent Nos.1 and 2 filed the suit for permanent prohibitory injunction thereby restraining the petitioner, one Surinder OWP No.1887/2018 Page 2 of 6 Kumar and Sham Lal from interfering into the possession of five marlas of land comprising Khasra No.19 min, Khata No.157 min, Khewat No.15 min situated at Moza Toph Sherkhania, Tehsil and District Jammu. It is further contended that the suit has been filed on the ground that the plaintiffs have purchased the land jointly from Sham Lal vide Sale Deed executed on 23.01.2017, registered on the same date before the Sub Registrar Jammu for a consideration amount of Rs.Twelve Lakhs. It was pleaded in the plaint that the sale deed was reflected in the revenue record and the mutation No.28 dated 07.02.2017 was also attested in their favour. After the execution of sale deed, the vacant possession of the land was given to them but defendants are interfering into the possession of the land.
8. The court below on 14.08.2018 passed an interim direction in an application under Order XXXIX Rules 1 and 2 CPC. The concluding paragraph of the order reads thus:
"I have heard the Ld. Counsel for the plaintiff/applicant and have perused contents of the plaint, copies of the Sale Deed, Mutation, copy of the letter dated 19.04.2017 are annexed with the plaint.
From the perusal of material/documents on record and the averment made in the plaint, it reveals that applicant/plaintiff has made out prima facie case in his favour. Notice is disposed in view of the emergency urged by the Ld. Counsel for applicant/plaintiff from irreparable loss/injury and in order to preserve the suit property, since notice to the defendant/non applicant for filing objections on the next date and in the meanwhile let the defendants be restrained temporarily from causing any interference in the suit land owned and possessed by the plaintiffs, till the next date of hearing. This order shall however be subject to the objections from the other side. However, this order is subject to modification or cancellation as and when warranted by the facts and the circumstances of the case. This order further subject to the condition that the plaintiff/applicant OWP No.1887/2018 Page 3 of 6 shall serve copy of this order, plaint, application, affidavit and documents annexed with the plaint forthwith to the defendant/non applicant personally or through registered post and shall file an affidavit that the said copies have been so sent or delivered."
9. The petitioner herein without filing objections and written statement before the court below, filed an appeal before the learned 2nd Additional District Judge, Jammu on 28.08.2018 which was dismissed on 30.08.2018 on the ground that the petitioner herein has not approached the trial court by filing objections and written statement. The appellate court further held that as the order impugned therein was subject to objections from the other side, therefore, the appeal was not maintainable. The relevant/concluding paragraphs of the order dated 30.08.2018 are reproduced hereunder:-
"Learned counsel appearing for the appellant though referred one judgment in support of his argument that impugned order needs to be stayed as learned court below was supposed to direct the plaintiffs to give an undertaking that they will not make any further construction upon the premises till the application for temporary injunction is finally heard and disposed of. However, to my mind the judgment referred in case Shiv Kumar Chadha vs. Municipal Corporation of Delhi 1993 (3) SCC 161 is not applicable in the present facts and circumstances simply because of the reason that in the judgment the direction relied upon by the learned counsel was passed in particular facts and circumstances where the plaintiff was seeking direction/relief against Municipal Corporation and that is why the Hon'ble Supreme Court in para no. 36 of the said judgment repeatedly made mention of the Corporation as one of the party and , as such, the direction no. (iii) as given in para no. 36 of the judgment cannot be held to be applicable in every set of facts and circumstances. In this case as observed above the learned court below has passed ex parte temporary injunction subject to objections from the other side and, therefore, the appellant is at liberty to approach learned court below but appeal in the given circumstances especially in view of the law laid down by the OWP No.1887/2018 Page 4 of 6 Hon'ble High Court in above referred judgments is not entertain-able.
Hence for the reasons given herein above the appeal is dismissed and the appellant is at liberty to approach the learned trial court by filing objections to the application and if so filed, the trial court shall consider the objections and dispose of the application for temporary injunction expeditiously but definitely within the statutory period. It is also made clear that during the pendency of the said application the learned court below is at liberty to make any order as is required to be made to is wisdom in accordance with law including the modification of impugned orders passed by him though obviously if permissible under law. A copy of this order be sent to the lower court for information. Appeal file be consigned to records after due compilation."
10. Admittedly, in the present case, the suit was filed on 14.08.2018 and on the same date order of injunction under Order 39 Rules 1 & 2 CPC was passed. The petitioner herein instead of filing objections and written statement, filed an appeal on 28.08.2018 before the learned 2nd Additional District Judge, Jammu which was dismissed. Thereafter, petitioner filed written statement and objections on 07.09.2018 and also an application for preponing the matter. Therefore, the petitioner has already complied with the direction of the appellate court by filing the written statement and objections to the application. In this way, now petitioner cannot maintain present petition before this Court against the order of appellate court, in compliance to which he has already filed written statement and objections. Now matter is sub judice before trial court for arguments on an interim application of injunction.
11. There is no dispute with regard to law cited by learned counsel for the petitioner but in the present set of circumstances, it is not applicable. Further, M/s Astral Traders' case (supra), the reliance on which has OWP No.1887/2018 Page 5 of 6 been placed by learned counsel for the petitioner, says that the appeal against the interim injunction should not be entertained as a matter of practice. For facility of reference, the relevant paragraph No.14 of the aforesaid judgment is extracted hereunder.
"14. Mufti Baha-Ud-Din Fakooqi, Acting C.J.-I am inclined to agree with the view expressed by my learned brother that an ex parte ad interim injunction is as much appealable as an order of temporary injunction passed after hearing both the parties. But in my opinion it would be in the fitness of things if, as a matter of practice the appellate court refuses to entertain an appeal directed against an ad interim injunction so long as the aggrieved party has not approached the trial court for its vacation. I say so on the twin grounds; firstly, that an order passed after hearing the parties would naturally be passed upon, the material and data placed on the file by either party and, secondly, because such order would provide the appellate court the benefit of the views expressed by the trial court in the matter, howsoever brief and cryptic such views might be. On the other hand if an appeal against an ex parte order of injunction is entertained, the aggrieved party would necessarily demand that it should be allowed to place on record the material that it seeks to rely upon and this would naturally turn the appellate court into the trial court and, moreover, the appellate court would not be able to guess as to what the opinion of the trial court would be if such material were placed before it. That much about the first ground of objection raised by the learned counsel for the petitioner."
12. In view of all what has been discussed hereinabove, I am of the considered opinion that this petition is not maintainable. Hence, it is dismissed along with connected interim application(s). However, the trial court is directed to decide the interim application pending before it, within a period of one month from the date, copy of this order is made available. Stay, if any, is vacated.
03.05.2019 (Sanjay Kumar Gupta) Jammu* Surinder NARINDER KUMAR SHARMA Judge 2019.05.03 14:47 I attest to the accuracy and integrity of this document OWP No.1887/2018 Page 6 of 6