GH QADIR HAJAM Vs. ALI KHAN

JUDGEMENT

(1.) REVISION petitioners filed suit for declaration and injunction in the court of District Judge, Pulwama, who transferred this case on the file of Munsiff Tral, for trial. The plaintiffs sought declaration of being continuously in possession of their share of land measuring 19 Marlas in Survey No. 593/402/3 of Khewat No. 105 min for last number of years to the exclusion of other co -owners and co -sharers and to injunct the respondents from interfering with his alleged possession over the suit land. Simultaneously, an application for temporary injunction was moved. The trial court of Munsiff Tral after hearing parties made absolute the orders of status quo passed earlier on 2.1.1999 for reasons given in the order. Against this order an appeal was filed before District Judge, Pulwama. The appellate court on 10.10.2000, set aside the status quo order as perverse, and not maintainable, while accepting the appeal.

(2.) THE main challenge to the order, thrown in his submission by the learned counsel for the petitioner, is on the ground that the impugned appellate order suffers from jurisdictional error and is legally infirm in as much as no appeal lays against the order of status quo in question since the order is not temporary injunction order covered by Rule 1 and 2 of Order 39 CPC and is not included in the category of appealable orders prescribed under Order 43 CPC. The status quo order is not an order of temporary injunction, but an order passed to preserve the subject of the suit.

(3.) THE counsel further submits that the order of appellate court in setting aside the status quo order of the trial court is not merited in as much as it has caused injustice to the plaintiffs. The appellate court is not justified to upset the order passed in discretion on consideration of the material available with the trial court. The trial court could not have been tinkered with casually.