Nazir Ahmad Dar And Another vs Muzaffar Ahmad Wani & Others
2023 Latest Caselaw 366 j&K/2

                                                             S.No.80
                                                             Supplementary


IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT SRINAGAR


                       CM(M) 55/2023, CM No.1798/2023 &
                       Caveat No.669/2023

Nazir Ahmad Dar and Another
                                                            ... Petitioner(s)

                       Through: -Mr.M.A.Qayoom, Advocate.
                Vs.

Muzaffar Ahmad Wani & Others
                                                          ...Respondent(s)

                       Through: -Mr. Parvaiz Lone, Advocate.

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

                              JUDGMENT

06.04.2023

1) The petitioners have challenged order dated 28.03.2023

passed by learned Principal District Judge, Pulwama, whereby, on an

application filed by the respondents, the learned District Judge has

clarified its earlier interim order dated 10.03.2023, thereby permitting

the use of Tractor with trolley for carrying the construction material to

the residential house of the respondents through the pathway existing

on spot subject to certain conditions laid down by the trial Court.

2) It appears that the petitioners herein/plaintiffs have filed a suit

for permanent injunction against the respondents/defendants seeking a

decree of permanent injunction, thereby restraining the defendants from

interfering in their land measuring 10 Marlas falling under survey

No.837 situated at Malikpora Pulwama. A further direction upon the

defendants has been sought restraining them from carrying heavy

loaded vehicles from the suit land.

3) It seems that the dispute between the plaintiffs and the

defendants relates to a passage leading from link road Malikpora to the

land where defendant No.1 has constructed a two storied residential

house on a portion of his land. While the plaintiffs claim that width of

the said passage is only about 5 feet and if the defendants are allowed

to ply heavy loaded vehicles on the said passage, it will cause damage

to the property of the plaintiffs, which is located on the periphery of the

passage, the defendants on the other hand claim that the said passage is

the only pathway leading to their house and that the plaintiffs by

parking their private vehicles over the passage are causing hurdles for

the defendants in using the said passage.

4) Learned Munsiff Pulwama, before whom the suit is pending,

decided the application for grant of interim relief filed by the plaintiffs

vide order dated 25.02.2023. While vacating its ex parte interim

direction, whereby the defendants were restrained to ply heavy vehicles

on the passage leading to the land under survey No.837, situated at

Malikpora Pulwama and holding that ingredients for grant of interim

injunction in favour of plaintiffs are not satisfied, the learned trial Court

disposed of the application and passed the following directions:

i. The defendants/non-applicants shall file an indemnity bond that they indemnify any damage occurring to the retaining walls constructed by the plaintiffs/applicants by plying the vehicles.

ii. Defendants/non-applicants will not ply any vehicle except tractor for carrying the construction material. iii. Plying of heavy vehicles like dumper, dippers or any other similar vehicle shall be strictly prohibited in view of the report of the commission.

iv. Defendants/non-applicants will also deposit a cheque of Rs 50,000/- before the court and a statement relating to the bank account regarding the sufficiency of the amount as security in case any damage is occurred while carrying the tractors to the retaining wall/fencing of the plaintiffs/applicants.

5) The aforesaid order came to be challenged by the plaintiffs in

an appeal before the Court of learned Principal District Judge,

Pulwama. On 10.03.2023, the learned Appellate Court passed an

interim order, whereby the defendants were directed to comply with the

conditions imposed vide order dated 25.02.2023 passed by the trial

Court with a further direction to the defendants that they would not use

any heavy vehicle which includes Dumper, Tipper, Truck or any other

such like vehicle for carrying any construction material to their

residential house which is under construction, till final disposal of the

appeal.

6) After passing of the aforesaid order by the learned Appellate

Court, it seems that the defendants moved an application before the

trial Court seeking implementation of order dated 25.02.2023 passed by

the trial Court, as the Appellate Court had directed the defendants to

comply with the conditions laid down in the said order. Learned trial

Court vide its order dated 13.03.2023 observed that implementation of

the order would involve interpretation of the scope of direction passed

by the Appellate Court in order to ascertain as to whether the Tractor

would come within the restrictive conditions laid down by the

Appellate Court.

7) In the aforesaid backdrop, the defendants/respondents filed an

application before the Appellate Court seeking clarification of order

dated 10.03.2023. The said application was opposed by the

appellants/plaintiffs, inter alia, on the ground that clarification sought

by the respondents/defendants, in fact, amounts to seeking review of

order dated 10.03.2023 passed by the Appellate Court. On this

application of the defendants/respondents herein the learned Appellate

Court has passed the impugned order, thereby clarifying that

respondents are permitted to use the Tractor with trolley for carrying

the construction material to their residential house through the pathway

existing on spot subject to the conditions contained in order dated

25.02.2023 passed by the trial Court.

8) The petitioners have challenged the impugned order passed by

the Appellate Court primarily on the ground that clarification given by

the Appellate Court, in fact, amounts to review of its earlier order,

which could not have been done on an application of the defendants

seeking clarification of the order. It has been submitted that without

considering the objections of the appellants/petitioners the impugned

order came to be passed by the learned Appellate Court which is not

sustainable in law. It has been contended that under the garb of the

impugned order, the Appellate Court has modified its own order dated

10.03.2023, which it had no jurisdiction, power or competence to do. It

has been submitted that if the defendants/respondents are allowed to

ply the loaded Tractor with trolley on the pathway leading from main

link road to the house of the defendants, irreparable damage will cause

to the drainage pipes and the retaining wall of the petitioners and that

this aspect of the matter has not been taken into account by the

Appellate Court.

9) Respondents, who are on caveat and are represented by their

counsel, have refuted the contentions raised by the petitioners. It has

been submitted that the learned Appellate Court was well within its

jurisdiction to pass the impugned order, whereby he has only clarified

his earlier direction and has not modified the same.

10) I have heard learned counsel for the parties and perused

the record.

11) The main issue to be considered in this case is, as to whether

the impugned order dated 28.03.2023 amounts to review or

modification of order dated 10.03.2023 or it is clarificatory in nature.

For determination of this issue, we need to have a look at the relevant

directions issued by the Appellate Court in its order dated 10.03.2023.

The same are reproduced as under:-

" In view of the above, the respondents are directed to comply the conditions imposed by the trial court contained in the order dated 25.02.2023, impugned herein strictly with further

direction to the respondents that they would not use any heavy vehicle which includes Dumper, Tipper, Truck or any other vehicle like so for carrying any construction material to their residential house which is under construction as reported by the parties till the final disposal of the appeal..."

12) From a perusal of afore quoted directions issued by the

learned Appellate Court it is clear that respondents, besides having

been directed to comply with the directions imposed by the trial Court

in its order dated 25.02.2023, have been further directed not to use any

heavy vehicle including the Dumper, Tipper or Truck or any other such

like vehicle for carrying construction material to their house. What has

been prohibited by the aforesaid direction is carrying of construction

material to the house of the respondents through heavy vehicles

including Dumper, Tipper, Truck etc. There is no blanket direction

issued by learned Appellate Court prohibiting the respondents from

taking construction material to their residential house by all modes of

transport. The only prohibition imposed upon the respondents is

relating to carrying of construction material through heavy vehicles

which in other words means that the respondents are free to carry

construction material through light vehicles or any other mode not

prohibited by the Appellate Court.

13) The learned Appellate Court, upon an application made by the

respondents, has clarified the above aspect of the matter by providing

that the respondents are permitted to use Tractor with trolley for

carrying the construction material. While providing so, the learned

Appellate Court has relied upon the judgment of the Supreme Court

according to which a Tractor with trolley falls in the class of light

motor vehicles. Even if the aforesaid clarification would not have been

issued by the Appellate Court, still then from order dated 10.03.2023 it

could easily be inferred that the Appellate Court has not restrained the

respondents from carrying the construction material to their house

through the pathway by any mode other than heavy vehicles, which

would include the light motor vehicle as well. Therefore, it cannot be

stated that the Appellate Court has, by issuing the impugned

clarification, modified its earlier order or reviewed the same. The

Appellate Court has only stated the obvious in its impugned order dated

28.03.2023.

14) So far as scope of power this Court under Article 227 of the

Constitution of India is concerned, the same has to be exercised

sparingly only to keep the subordinate Courts within bounds of their

authority. Such power has to be exercised only when the inferior Court

acts arbitrarily or where the inferior Court acts in excess of the

jurisdiction vested in it or when the inferior Court fails to exercise

jurisdiction vested in it. It is only if finding recorded by the inferior

Court is perverse in such a sense that no prudent person having the

knowledge of law would arrive at such a finding that the High Court

would interfere in exercise of its power under Article 227 of the

Constitution. Such power cannot be exercised for correcting errors of

fact or law or when there is no manifest failure of justice.

15) In the instant case, as already noted, the learned Appellate

Court while passing impugned order has not committed any

jurisdictional error nor has it acted with any material irregularity so as

to warrant interference of this Court in exercise of its power under

Article 227 of the Constitution.

16) For the fore going reasons, the impugned order passed by the

learned Appellate Court does not call for any interference. The petition

lacks merit and is dismissed accordingly. Caveat No.669/2023 also

stands discharged.

(SANJAY DHAR) JUDGE SRINAGAR 06.04.2023 Sarveeda Nissar

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