NOOR MOHAMMAD GOJAR Vs. GHULAM QADIR

JUDGEMENT

(1.) The petitioner is aggrieved of and has challenged the Order dtd. 8/6/2023, passed by the learned Principal District Judge, Shopain, in an appeal titled Ghulam Qadir vs. Mohammad Hussain Gojar and Anr. filed by the respondent herein against the Order dtd. 25/10/2022, passed by the court of Sub Judge, Shopian, in an application filed under Sec. 151 of Civil Procedure Code 1908.

(2.) The short submission, which has been made by learned counsel for the petitioner, is that the learned District, Judge, Shopian, without having power, competence and jurisdiction to entertain the appeal, has passed the impugned order dtd. 8/6/2023, and has allowed the appeal in spite of the fact that this aspect of the matter has been brought to his notice. Learned counsel has argued that the order passed by the Sub Judge, Shopian, is neither appealable under Order 43 of Civil Procedure Code nor revisable one, yet the learned Principal District Judge, Shopian, has entertained the appeal and set-aside the order dtd. 25/10/2022, passed by the Sub Judge, Shopian. It is further argued by learned counsel for the petitioner that the appeal was not maintainable on the ground that Ss. 104 to 108 and Order 43 of CPC deals with appeals from orders and appeal under Order 43 can be entertained against the orders mentioned in Ss. 104 to 108 read with Order 43 of CPC and no appeal lies against the other orders. Learned counsel has further argued that the remedy, if any, available against the order dtd. 25/10/2022, was to file petition under Article 227 of the Constitution of India and not an appeal under Sec. 43 of Civil Procedure Code. Accordingly, the order impugned dtd. 8/6/2023, is against the provisions of law, more particularly, against the Order 43 of Civil Procedure Code and is without jurisdiction and competence of learned District Judge, therefore, is liable to be quashed.

(3.) Learned counsel for the petitioner with a view to fortify his claim has placed a reliance on a Judgment passed by this Court in an identical matter viz. OWP No. 387/2017 titled Mohammad Rajab Ganai and Anr vs. Ghulam Mohammad Ganai. For facility of reference, the operative part of the Judgment is taken note of:-