Jammu & Kashmir High Court - Srinagar Bench
Abdul Lateef Shah vs Showkat Hussain Shah And Ors on 25 March, 2025
S. No. 1
Regular list
HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM1481/2025 IN RSA/16/2021
ABDUL LATEEF SHAH ...Petitioner(s)/Appellant(s)
Through: Mr. Mujeeb Andrabi, Advocate for (non-applicant)
Vs.
SHOWKAT HUSSAIN SHAH AND ORS. ...Respondent(s)
Through: Mr. Syed Faisal Qadri, Sr. Advocate with
Ms. Mariya, Advocate, (for applicants)
CORAM:
HON'BLE MR. JUSTICE RAHUL BHARTI JUDGE
ORDER
25.03.2025
1. The three respondents, as being the plaintiffs, came to earn a decree
and judgment dated 22.05.2017 from the Court of Munsiff
(Judicial, Magistrate Ist Class) Budgam holding the
respondents/plaintiffs as owners of suit land measuring 11.5 marlas
covered under survey No. 1437 in Soibugh Budgam and also
decreeing delivery of possession of the suit land in favour of the
respondents/plaintiffs by the appellant/defendant.
2. The trial court decree and judgment which was reckoned by the
defendant/appellant to be an ex-parte one was sought to be set aside
by taking recourse to Order 9 Rule 13 of the J&K Code of Civil
Procedure, Svt 1977 but the application was disallowed by an order
dated 10.05.2019 by the Court of learned Munsiff, Budgam against
which the appellant had come forward with a civil miscellaneous
appeal under Order 43 Rule 1(d) Code of Civil Procedure before
the Court of Additional District Judge, Budgam, which vide
judgment dated 18.09.2021 came to dismiss the said appeal of the
appellant as well.
3. The appellant has came forward with a purported civil second
appeal against judgment and decree dated 18.09.2021 passed by the
Additional District Judge, Budgam and also against ex-parte decree
dated 22.05.2017 of the Court of Munsiff Budgam.
4. There is no civil first appellate judgment and decree in the suit by
reference to which the appellant could be said to have a right of
civil second appeal under Section 100 of the Code of Civil
Procedure, but still the appellant has chosen to lay his appeal as
being a civil second appeal and this requires to be examined as to
whether the exercise on the part of the appellant is a misdirected
and misconceived one.
5. Be that as it may, in terms of an order dated 25.11.2021, substantial
questions of law came to be framed and later by virtue of order
dated 12.03.2022 this Court came to direct no change of possession
on spot.
6. The respondents/plaintiffs have come forward with application CM
1481/2025 alleging that the appellant is indulging in acts of
omission or commission by changing the possession on spot and in
that regard is indulging in cutting of standing trees at the site of the
suit land and also intending to create third party interest.
7. Issue notice.
8. Mr. Mujeeb Andrabi Advocate accepts notice on behalf of the
appellant. Appellant is directed to ensure letter and spirit
compliance of directions of maintaining position on spot as it is
mandated in terms of order dated 17.03.2022 bearing in mind that
it was on the statement of the learned counsel for the appellant that
the direction came to be so passed.
9. Any reported act of omission or commission on the part of the
appellant in changing the position on spot including cutting or
pruning of standing trees at the site of the suit land may result in
dismissal of the appeal of the appellant
10. In the meantime, learned counsel for the appellant shall also file
reply to the application CM 1481/2025.
11. List this application along with main petition on 01.05.2025.
(RAHUL BHARTI)
JUDGE
SRINAGAR
25.03.2025.
Bisma
