LAWS(J&K)-1984-1-1

DINA NATH Vs. MOHAN SINGH

Decided On January 06, 1984
DINA NATH Appellant
V/S
MOHAN SINGH Respondents

JUDGEMENT

(1.) The short, though meaningful, question which requires consideration in this revision petition is as to what is the effect of the dismissal of an appeal, in default of appearance by the appellate Court, on the order which had been appealed against?'

(2.) The back-drop of facts in which this revision has been arisen and which are not in dispute may first be noticed in brief : The petitioner along with some others filed a suit for declaration with consequential relief of injunction against the respondents and the same is pending disposal in the Court of learned Sub-Judge Reasi. Along with the suit, the petitioner and others filed an application for grant of an ad interim injunction restraining respondent No. 1 from receiving the CHARAT OF SHRI VAISHNO DEVI DARBAR. On 4-5-1983, the learned Sub-Judge, Reasi, granted the ad interim injunction, as prayed for, but the order was made subject to the objections from the other side. Respondent No. 1 filed an application on 6th May, 1983, seeking vacation of the ex parte ad interim injunction. It appears that before the application for vacation of the ex parte ad interim injunction was taken up for consideration, respondent No.1 filed an appeal against the order dated 4-5-1983 before the learned District Judge Udhampur, who vide order dated 28th May, 1983 admitted the appeal and stayed the operation of the impugned order dated 4-5-1983. The appeal, it appears, came up for hearing but on 16-8-1983, the same was dismissed in default of appearance of the appellant or his counsel and on the same date the stay order granted by the District Judge was also vacated. After the dismissal of the appeal, in default of appearance, respondent No.1 appeared before learned Sub-Judge, Reasi, and submitted that the application for ad interim injunction be heard and decided on merits and further stated that his application for vacation of the ad interim injunction be treated as objections to the application of the plaintiff. The petitioner and others thereupon moved an application on 30th of Sept., 1983, before, the learned Sub-Judge, Reasi, submitting therein that with the dismissal of the appeal filed by respondent No. 1 by the appellate Court on 16-8-1983, the ad interim injunction order dated 4-5-1983 had merged into the order of the learned District Judge dated 16-8-1983 and had become absolute, pending the disposal of the main suit. To that application objections were filed by respondent No. 1 and after the objections were filed, the learned Sub-Judge, Reasi, vide order dated 10-12-1983, dismissed the application and directed that the stay application (the application seeking ad interim injunction) be listed for hearing. It is against that order that the petitioner-plaintiff has come up in revision.

(3.) Mr. Sapolia, learned counsel for the petitioner, has submitted that since the ex parte order of injunction passed by learned Sub Judge Reasi which was an appealable order, was appealed against the dismissal of the appeal on 16-8-1983, had the effect of putting a seal of finality on the ad interim injunction dated 4-5-1983, and, therefore, it was not open to the trial Court to re-hear the stay application on merits. Learned counsel further argued that the dismissal of an appeal in default of appearance had the effect of dismissal of the appeal in the absence of proof and in support of his submission, reliance has been placed by the learned counsel on AIR 1963 SC 146.