ASIF KHAN Vs. SARDAR AMANULLAH KHAN

JUDGEMENT

(1.) When the above appeal was taken up for hearing as to admission on 23.05.2008, a preliminary objection was raised as to the maintainability of the appeal. Subsequently on 25.09.2008 when the counsel appearing for the respondent made a statement that in view of the decision of Hon'ble Supreme Court reported in, P. S. Sathappan vs. Andhra Bank Ltd, 2004 AIR(SC) 5152, he does not question the maintainability of the appeal, the appeal was directed to be listed after three weeks. However, subsequently on 11.11.2009 the very same learned counsel who appeared for the respondent on 25.09.2008 joined issue with regard to the maintainability of the appeal and wanted to raise the issue once again. It was pointed out that on 25.09.2008 the counsel did not press the issue of maintainability and an order was also passed to that effect. The counsel, however, wanted to lay a motion. It is in the above stated background the present CMP 408/2009 came to be filed on behalf of the respondent for dismissing the appeal on the ground of maintainability.

(2.) To appreciate the issue raised in this application, it is necessary to state a few facts relating to the main appeal.

(3.) The appellant is the defendant in the suit in File no. 23/M. The respondent in the appeal filed the suit for permanent injunction and also sought for interlocutory injunction pending suit. The interlocutory application came to be dismissed by the trial Court by order dated 19.07.2006. The respondent took it up on appeal in appeal no. 23/2006 before the Principal District Judge Srinagar on 21.07.2006. The present appellant was on caveat before the appellate Court. The counsel who appeared for the appellant made a statement before the Court that no construction could be raised on the spot till the next date of hearing fixed by the Court i.e. 24.07.2006. According to the respondents, the assurance made before the Court was not adhered to and consequently an application under Order 39 Rule 2-A of the CPC was filed in which the present appellant was found to have committed disobedience of the undertaking made before the Court. Consequently he was directed to pull down the structure made by him. The learned District Judge also directed attachment and civil imprisonment of the appellant but instead of resorting to the said course directly, the learned District Judge, by taking a lenient view, asked the appellant to pull down the disputed structure. Against the order passed under Order 39 Rule 2-A CPC dated 28.07.2007, the appellant preferred CIMA no. 176/2007 which was dismissed by the learned Single Judge on 18.02.2008. Subsequently he filed review no. 3/2008 in CIMA no. 176/2007 before the learned Single Judge which was also dismissed by the learned Single Judge by order dated 16.05.2008. As against the above two orders the present appeal, in LPA no. 57/2008, has been filed.