State Of J&K & Others vs Yar Mohammad Khan & Othrs
2021 Latest Caselaw 1280 j&K/2

                                                                                    Item No.102
                                                                                    Suupl List

                               IN THE HIGH COURT OF JAMMU & KASHMIR AND
                                              AT SRINAGAR


                                                                            OWP No.1845/2018

                        STATE OF J&K & OTHERS                              ...PETITIONER(s)

                                     Through:     Mr. Irfan Andleeb, Dy. AG.

                               V/s

                        YAR MOHAMMAD KHAN & OTHRS                         ...RESPONDENT(S)

Through: Mr. Hilal Ahmad Wani, Advocate.

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

(ORDER)(ORAL) 11.10.2021

1. Through the medium of instant writ petitioner, petitioners have

challenged the judgment and decree dated 05.05.2017 passed by Sub

Judge, Ganderbal, whereby a decree of declaration has been passed

holding the respondents herein entitled to monetary compensation or in

the alternative employment to each family member of the respondents.

A further mandatory injunction has been passed against the petitioners

herein to constitute a committee for estimating the cost of land occupied

by the petitioner or in the alternative to recommend case for appointment

to each member of family of the plaintiffs/respondents.

2. Section 96 read with Order XLI of CPC provides for a remedy of

appeal against a judgment/decree passed by a Civil Court. Thus, there is

an alternative and efficacious remedy available to the petitioners. MOHAMMAD ALTAF BHAT 2021.10.12 16:47 I attest to the accuracy and integrity of this document

However, without exhausting the said remedy, the petitioners have

rushed to this Court by filing the instant petition under Article 227 of the

Constitution of India challenging the judgment and decree of the trial

court.

3. It is a settled law that the High Court would be extremely reluctant

to exercise its discretionary writ jurisdiction in a case where the writ

petitioner has an alternative and efficacious remedy available to him. In

the instant case, the petitioners, as already discussed, did have the

alternative and efficacious remedy of appeal. Without exhausting the

said remedy, they could not maintain the writ petition. The writ petition

is, therefore, not maintainable and the same is, accordingly, dismissed.

It shall, however, be open to the petitioners to challenge the impugned

judgment and decree by filing an appeal under Section 96 CPC.

(SANJAY DHAR) JUDGE Srinagar 11.10.2021 "Bhat Altaf, PS"

                                           Whether the order is speaking:        Yes/No
                                           Whether the order is reportable:      Yes/No




MOHAMMAD ALTAF BHAT
2021.10.12 16:47
I attest to the accuracy and
integrity of this document