Jammu & Kashmir High Court - Srinagar Bench
National Building Construction ... vs Jhelum Constructions on 13 October, 2022
Serial No. 03
Supplementary-1 Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 201/2022
CM No. 5736/2022
Dated: 13th of October, 2022.
National Building Construction Corporation
... Appellant(s)
Through: -
Mr Z. A. Shah, Senior Advocate with
Mr Syed Musaib, Advocate.
V/s
Jhelum Constructions, Partnership & Anr.
... Respondent(s)
Through: -
Mr Arshad Ahmad, Advocate for R-2.
CORAM:
Hon'ble the Chief Justice
Hon'ble Mr Justice Vinod Chatterji Koul, Judge
(JUDGMENT)
Ali Mohammad Magrey-CJ (Oral):
01. This is an appeal directed against the Order dated 6th of
October, 2022 passed by the learned Single Judge in CM No. 3271/2022
arising out of Writ Petition filed by the Writ Petitioner/ Respondent No.1
herein, being OWP No.1752/2018.
02. In the aforesaid Writ Petition filed by the Respondent No.1
herein, the Writ Court, in terms of Order dated 28th of April, 2022, had
directed the Appellant herein/ Respondent No.2 in the Writ Petition to
deposit an amount of Rs.60.00 lacs before the Registry of this Court with
further direction to the Registry to keep the said amount, if deposited, in the
Fixed Deposit Receipt (FDR) initially for a period of six months. Feeling
aggrieved and dissatisfied by the said Order dated 28th of April, 2022
passed by the Writ Court, the Appellant herein filed an appeal bearing LPA
No. 89/2022 wherein this Court, in terms of Order dated 27th of May, 2022,
disposed of the appeal with liberty to the Appellant to file an appropriate
LPA No. 201/2022
CM No. 5736/2022
motion for seeking modification/ rectification/ alteration of the Order
impugned before the Writ Court on grounds as may be available to the
Appellant, including those taken in the instant appeal.
03. Mr Z. A. Shah, the learned Senior Counsel, appearing on
behalf of the Appellant, has invited the attention of the Court to CM bearing
No. 3271/2022 filed by the Appellant/ Respondent No.2 in the Writ
Petition, whereby he has sought modification/ vacation of the Order dated
28th of April, 2022 passed by the Writ Court, in tune with the direction
passed by this Court. It is pleaded that the learned Single Judge, instead of
deciding the said application, in terms of Order dated 13th of July, 2022,
again reiterated the direction for deposition of the amount by the Appellant
herein/ Respondent No.2 in the Writ Petition, which Order was again
challenged by the Appellant in LPA No. 136/2022, wherein this Court, vide
Order dated 12th of August, 2022, disposed of the appeal with direction to
the Writ Court to consider and decide the application of the Appellant
before proceeding with the hearing of the Writ Petition and the deposit of
the amount of Rs.60.00 lacs by the Appellant was kept subject to the
decision of the application of the Appellant or the Writ Petition, as the case
may be. The learned Senior Counsel contended that the learned Writ Court,
in these circumstances, was supposed to first consider and decide the
application filed by the Appellant/ Respondent No.2 in the Writ Petition,
but despite that, the learned Single Judge has again, in terms of the Order
impugned, directed for deposition of the amount of Rs.60.00 lacs by the
Appellant herein/ Respondent No.2 in the Writ Petition with the Registry
with further stipulation that failure thereof will entail coercive measures
against the Appellant/ Respondent No.2 in the Writ Petition.
04. Having heard the learned appearing Counsel for the parties,
perused the pleadings on record and after considering the matter, we have
noticed that the Appellant/ Respondent No.2 before the Writ Court has filed
the 3rd Letters Patent Appeal; two of which stand already disposed of,
mention whereof is made hereinabove, primarily, only to the extent of being
LPA No. 201/2022
CM No. 5736/2022
aggrieved of the direction of the Writ Court qua deposition of the amount of
Rs.60.00 lacs, which direction was interim in nature. We have noticed that
in the earlier two appeals filed by the Appellant herein/ Respondent No.2
before the Writ Court, this Court has already granted liberty to the
Appellant to file application before the Writ Court seeking vacation/
modification of the said direction of deposition of the amount with further
direction to the Writ Court to decide the said application and the deposition
of the amount has been kept subject to decision in the application, but still
the Writ Court has, again, proceeded to direct for deposition of the amount
by the Appellant/ Respondent No.2 in the Writ Petition without deciding
the application filed by him for seeking modification/ vacation of the Order,
which course of action, in our opinion, may not be in tune with the direction
passed by this Court in the earlier two appeals filed by the Appellant herein.
That being so and with a view to reduce the multiplicity of litigation on the
subject, we request the learned Single Judge not to insist for deposition of
the amount by the Appellant/ Respondent No.2 before the Writ Court
without deciding the application filed by the Appellant/ Respondent No.2
before it on merits and after hearing the parties. Accordingly, we allow this
appeal and set aside the impugned Order dated 6th of October, 2022 passed
by the Writ Court with a request to the Writ Court to first decide the
application filed by the Appellant herein/ Respondent No.2 (CM No.
3271/2022) before it seeking vacation/ modification of the Order. It is made
clear that unless such application is decided, there shall be no direction for
any deposition of the amount. Registry shall list the matter before the
learned Single Judge on Wednesday, the 19th of October, 2022.
05. Disposed of as above, along with the connected CM.
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Chief Justice
SRINAGAR
October 13th, 2022
"TAHIR"
TAHIR MANZOOR BHAT
2022.10.15 15:16
I attest to the accuracy and
integrity of this document
