Abdul Rashid vs Mohd. Aziz And Others
2021 Latest Caselaw 168 j&K

                                                                    S. No. 204
              HIGH COURT OF JAMMU AND KASHMIR
                             AT JAMMU

                                                    CONC No. 9900004/2014
                                                    In CSA No.9900001/2014
                                                    IA No. (99001/2014
                                                    [D-18/2014])

Abdul Rashid                                          ...Appellant/Petitioner(s)

                  Through :- Mr. R.P. Sharma, Advocate

                 v/s
                   <




Mohd. Aziz and others
't
                                                             .....Respondent (s)

                  Through :- Mr. Ved Raj Wazir, Sr. Advocate with
                             Mr. Neeraj Magotra, Advocate.



Coram:        HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                       ORDER

22.02.2021

CONC No. 9900004/2014

1. The present application has been filed seeking condonation of 02 days

delay in the presentation of the appeal. However, the report of the Registry reveals

that there is a delay of 03 days in preferring the said appeal. The applicant has

narrated the sufficient cause in not preferring an appeal within the period of

limitation.

2. For the reasons stated in the application, the same is allowed. The delay

of 03 days in preferring the appeal is condoned.

3. The application is disposed of, accordingly.

CSA No.9900001/2014

4. The present civil 2nd appeal has been preferred against the judgment of

Learned District Judge, Poonch dated 25.11.2013, by virtue of which the appeal filed 2 CONC No. 9900004/2014 In CSA No.9900001/2014

by the appellant against the judgment and decree passed by Learned Sub-Judge,

Surankote dated 10.05.2012 has been rejected.

5. From the perusal of the memo of the appeal along with the judgments

and decrees passed by the Appellate Court as well as by the Learned Trial Court, the

following substantial questions of law arose for the consideration.

a. Whether a court after recording a finding that the plaintiff is in possession of a

shop as a tenant and on illegal eviction during the pendency of the suit by the

defendants was restored possession by exercising powers under section 151

CPC , could a suit of permanent prohibitory injunction be rejected holding that

he is not entitled to grant of decree after second dispossession by taking law in

hands by the owner during trial for which he is being prosecuted for

commission of offence u/s 448 RPC?

b. Whether a court is not empowered to mould relief of prohibitory injunction

into that of mandatory injunction on the peculiar facts and circumstance of the

case that arise for consideration in the interest of justice?

c. Whether a cost of Rs.l,50,000/-(rupees one lac fifty thousand) towards counsel

fee can be allowed and decreed against the plaintiff who seeks justice from the

court without showing any adherence to the rule in this behalf.?

6. The appeal is admitted to hearing on the aforesaid substantial questions

of law.

7. Notice.

8. Mr. Neeraj Magotra, Advocate accepts notice on behalf of respondents.

3 CONC No. 9900004/2014 In CSA No.9900001/2014

9. Call for the record of the trial court as well as appellate court.

10. List for final consideration on 04.05.2021.

(RAJNESH OSWAL) JUDGE JAMMU 22.02.2021 SUNIL-I