Manzoor Ahmad Shah And Anr vs Abdul Rahman Rather
2025 Latest Caselaw 141 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

Manzoor Ahmad Shah And Anr vs Abdul Rahman Rather on 13 May, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

                                               05
                                               Regular

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT SRINAGAR
                                 CM(M) NO. 187/2025
                                    CM No. 2878/2025

Manzoor Ahmad Shah and anr.
                                                    ..... Petitioner (s)

                       Through: Mr. R A Bhat, Adv.

                    V/s

Abdul Rahman Rather
                                              ..... Respondent(s)
                       Through:
Coram:
           Hon'ble Mr. Justice Sanjay Dhar, Judge

                                ORDER

13.05.2025

1. The petitioners have challenged order dated 03.04.2025 passed

by the Munsiff, Kangan in an application filed under Order 39

Rule 1 and 2 of CPC filed by the respondent/plaintiff against the

petitioners/defendants.

2. It appears that by virtue of the impugned order, an exparte ad-

interim injunction came to be passed by the learned trial court

whereby the parties were directed to maintain status quo on spot

with regard to the suit property. An order passed under Order 39

Rule 1 and 2 of CPC whether the same is exparte in nature or it

has been passed after hearing the parties, is appealable in nature Page |2

in terms of provisions contained under Order 43 Rule 1 (r). The

Supreme Court in the case titled Shalini Shyam Shetty Vs.

Rajendra Shankar Patil (2010) 8 SCC 329 has in clear terms

held that in a case where a litigant has an alternate efficacious

remedy available to him, it would not be open to the High Court

to exercise its supervisory jurisdiction under Article 227 of the

Constitution.

3. Learned counsel for the petitioners has, when confronted with

the aforesaid position of the law placed reliance upon judgment

of the Supreme Court in Kishore Kumar Khaitan and another Vs.

Praveen Singh reported in 2006(3) SCC 312. The question

whether in the presence of an alternative remedy, the High Court

can exercise its supervisory jurisdiction was not under

consideration before the Supreme court in the aforesaid cases.

Same is the position of the case titled O P Trivedi V/s Vijai

Shankar Dwivedi reported in AIR 1976 All 97 upon which

learned counsel has place reliance.

4. In view of the binding precedent of the Supreme Court in the case

of Shalini Shyam Shetty (supra), the petition is held to be not

maintainable and is dismissed accordingly, leaving it open to the Page |3

petitioner to file an appeal against the impugned order before the

District Judge concerned or to pursue the remedy of applying for

vacation of interim exparte order passed by the learned trial court.

(Sanjay Dhar) Judge SRINAGAR 13.05.2025 Aasif