Mohammad Ashraf Dar & Ors vs Abdul Rahim Dar & Anr
2022 Latest Caselaw 1742 j&K/2

                                                                 Sr. No. 14
                                                                 Regular Cause List
  IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                               MA No 35/2016


Mohammad Ashraf Dar & Ors.                              ...Petitioner(s)/Appellant(s)

Through:     Mr. Mohammad Sultan, Adv.

                                      Vs.
Abdul Rahim Dar & Anr.                                             ...Respondent(s)

Through:     Mr. Wali Mohammad Shah, Adv.

CORAM:

HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                 ORDER

11.10.2022

1. In the instant miscellaneous appeal, the appellants have challenged the impugned order dated 30th December 2015 passed by the Court of 1st Additional District Judge, Srinagar in a partition suit titled as "Mohammad Ashraf Dar & Ors. vs. Abdul Rahim Dar & Anr."

2. The facts under the shade and cover of which the instant appeal has been filed as pleaded in the memo of appeal would reveal that a suit for partition came to be filed by the present appellants against the respondent-herein along-with an application for interim relief where- under initially an order of status quo came to be passed on 9 th February 2011 and upon consideration of the said application finally in terms of impugned order vacated the status quo order while disposing of the application providing that in case the defendants-respondents herein are in occupation of the suit property as pleaded by the counsel for the defendants-respondents herein, they are entitled to enjoy the same and raise constructions subject to filing of an undertaking to remove the construction raised over the property in case the said property falls in the share of the plaintiff applicants and further providing that as per the pleadings, the plaintiff-petitioners herein are out of the possession of

the suit property, as such, cannot restrain the defendants-respondents to enjoy the property which is in their possession.

3. The impugned order is being questioned by the appellant inter alia on the grounds that the trial court failed to appreciate the controversy projected in the suit by the plaintiff-appellants herein and passed the order perversely without considering the pleadings of the parties in correct perspective.

Heard learned counsel for the parties and perused the record.

4. Perusal of the impugned order tends to show that the trial court while disposing of the application for interim relief and vacating the initial order of status quo was referred to and placed reliance on a judgment passed by this court in case titled "Ahad Sheikh vs. Murad Ahmad Shah & Ors. 2012 (4) JKJ 860 (HC)"as also the judgment of the Orissa High Court in case titled "Lingaraj Misra & Ors. vs. Bhubaneshwar Mohapatra & Ors. reported in AIR 1962 Orissa

31." The perusal of the impugned order ironically would tend to demonstrate that the trial court while considering the application for interim relief for its final disposal has overlooked the basic fundamental principles which govern and regulate the grant or refusal of an injunction being existence of a prima facie case, balance of convenience and irreparable loss and injury. The trial court in a mechanical manner has without analyzing and assessing the comparative merits and demerits of the case relating to the parties in a casual manner decided the application for interim relief even not recording its own satisfaction about existence of either of the principles supra. The casual approach adopted by the trial court in deciding the application per-se is not legally sustainable. The application for interim relief accompanying the suit of the petitioners admittedly has not received appropriate consideration by the trial court, as such, the matter requires to be remanded back to the trial court for reconsideration in accordance with law.

5. In view of the aforesaid facts and circumstances, the appeal is allowed and the impugned order dated 30th December 2015 is accordingly set- aside.

6. The trial court is directed to reconsider and revisit the application for interim relief afresh in accordance with law and pass appropriate orders after hearing the parties.

7. Till application for interim relief is decided afresh by the trial court, the parties shall maintain status quo on spot in respect of the suit property.

(JAVED IQBAL WANI) JUDGE SRINAGAR:

11.10.2022 Altaf