Abdul Shakoor vs Abdul Basit And Others
2021 Latest Caselaw 204 j&K

                                                                   S. No. 219
            HIGH COURT OF JAMMU AND KASHMIR
                           AT JAMMU

                                                  OW104 No. 61/2016
                                                  IA No. 1/2016

Abdul Shakoor                                       ...Appellant/Petitioner(s)

                 Through :- Mr. A.K. Shan, Advocate

                v/s
                 <




Abdul Basit and others
't
                                                           .....Respondent (s)

                 Through :- None


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

                                      ORDER

26.02.2021

1. The present petition has been filed for quashing order dated 26.03.2016

passed by the Learned Munsiff Mendhar in an application filed by the petitioner

under Order 14 Rule 5 CPC refusing to frame an additional issue in a suit titled

Abdul Basit V. Abdul Shakoor & Ors.

2. It is stated that the respondents had filed a suit for permanent

prohibitory injunction with regard to land measuring 03 kanals and 01 marla

comprising khasra No. 743 situated at Salwah Tehsil Mendhar District Poonch and in

response to that the petitioner herein had filed written statement in which he had

categorically pleaded that the plaintiff is not in occupation of the suit property but

the suit property is in occupation of the Supardar in proceedings under section 145

Cr.P.C.

3. The learned trial court while refusing to frame the additional issue has

observed that none of the parties in their pleadings have mentioned that the property

is in occupation of Supardar under section 145 and 146 of Cr.P.C. However, the

perusal of the written statement filed by the defendant reveals that reference has been

made to the proceedings under section 145 Cr.P.C. So far as the refusal by the

learned trial court to the framing of additional issue is concerned, this Court does not

find any illegality in the said order as in a suit for permanent prohibitory injunction

restraining the other side for interfering into the peaceful possession, there is always

an issue as to whether the plaintiff is in occupation of the suit property or not and the

contention raised by the petitioner can be taken care of while deciding the said issue.

4. In view of this, no additional issue is required to be framed. So far the

observation made by the learned trial court that there is no reference to the

proceedings under section 145 of Cr.P.C. in the written statement filed by the

petitioner herein concerned, the same is contrary to record and the same shall not

come in the way of trial court while passing the judgment after conclusion of trial.

5. In view of above, the present petition is disposed of, accordingly.

6. Record called for, if any, be sent back to the trial court.

(RAJNESH OSWAL) JUDGE JAMMU 26.02.2021 SUNIL-I Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No