HARJINDER SINGH Vs. SAT PAUL

JUDGEMENT

(1.) These proceedings by Harjinder Singh (plaintiff in the suit before the trial Court) are filed to assail the validity of the order dated 24.12.2016 passed by the Principal District Judge, Samba in Civil Ist Appeal. The appellant has filed the Civil Ist Appeal against the impugned order and has alternatively invoked the provisions of Section 104 of the Constitution of State of Jammu and Kashmir. Keeping in view the nature of the order passed by the trial Court and the issues involved in these proceedings, I am of the view that it is a fit case where the proceedings filed by the appellant are required to be treated as one filed under Section 104 of the Constitution of Jammu and Kashmir. This is so because an order passed by the appellate Court in terms of Order 43 Rule 1(r) of Code of Civil Procedure (for short "the CPC") is not further appealable as is apparent from the provisions of Section 104 (2) of the CPC.

(2.) Harjinder Singh- appellant herein filed a civil suit for permanent prohibitory injunction against the respondents in the court of learned Sub Judge/CJM, Samba (hereinafter referred to as the "trial Court"). For facility of reference, the appellant is hereinafter referred to as "the plaintiff" and the respondents as "the defendants". The trial Court vide its interim order dated 11.01.2013 temporarily restrained the defendant No.1 and his agents or any other person claiming through him from interfering with the possession of the plaintiff over the suit land in any manner whatsoever. This ex parte ad interim order was challenged by the defendant No.1 in an appeal before the Principal District Judge, Samba (hereinafter referred to as the appellate Court). The appellate Court vide its order dated 28.02.2013, accepted the appeal and remanded the case back to the trial Court for passing fresh order after filing of objections and written statement by the defendant No.1. The appellate Court also directed that till the application for interim relief filed by the plaintiff is disposed of, both the parties shall observe status quo on spot. This is how the matter was reconsidered by the trial Court and vide order dated 09.10.2014, the trial Court disposed of the interim application and directed the parties to maintain status quo on spot till the disposal of the suit. Feeling aggrieved, the defendant No.1 filed a Civil First Miscellaneous Appeal before the appellate Court and sought vacation of the interim order of status quo. The plaintiff also filed cross objections and sought a positive restraint order against the defendant No.1. Both, the appeal as well as the cross objections were considered and disposed of by the appellate Court vide its order dated 24.12.2016. As is evident from the reading of the order, the appellate Court with a view to consider the rival contentions and effectively adjudicate the appeal and the cross objections, formulated two questions for determination;

(3.) There appears to be an extensive discussion on the issue No.1. the appellate Court after evaluating submissions of the learned counsel appearing for the parties and taking note of plethora of case law on the subject answered the first question in the following manner:-