Ghulam Nabi Mir vs Nisar Ahmad Mir And Ors

In this revision petition, challenge is thrown to the order dated 18.03.2021, passed by learned Munsiff/Civil Judge (JD), Bandipora, (for short

“Trial Courtâ€) in case titled Gh. Nabi Mir v. Nisar Ahmad Mir and Ors, whereby application of the petitioner/plaintiff filed under Order XXXIX

Rule 1 & 2 of the Code of Civil Procedure, seeking temporary injunction, has been dismissed. This order of Trial Court is challenged in this revision

petition, precisely, on the grounds that the Trial Court has not appreciated the pleadings put forth by the petitioner; there was nothing on record to

show that the property was partitioned by the parties either by way of family settlement or partition deed; it was the case of the plaintiff that parties

were living separately; the Trial Court, while dealing with the application seeking temporary injunction, has misdirected itself and has failed to

appreciate the case set up by the petitioner; the Trial Court while passing the impugned order has held that the petitioner-plaintiff has failed to add

Firdous Ahmad Mir as party, though petitioner has filed an application seeking his impleadment in the suit which has not been decided; there was

otherwise no record to show that Firdous Ahmad Mir was in possession of one shop; it is settled position of law that the possession of one co-sharer is

considered to be possession of all co-sharers; the Trial Court while passing the order impugned has exercised its jurisdiction illegally on non-existent

grounds in a slipshod manner and has, thus, caused failure of justice.

Heard learned counsel for petitioner and perused the record on the file.

As regards the question of maintainability of this petition under Section 115 CPC, learned appearing counsel for petitioner has submitted that on the

grounds stated in the memo of revision, there is no bar for maintaining this revision petition. In support of her arguments, she relies upon the judgments

rendered in the cases of Abdul Salam Wani and Ors v. Mohammad Subhan Khan and Ors. (CR No. 73/2009), decided on 05.06.2010, State of J&K

and Ors. v. Ghulam Rasool, decided on 02.09.1997, Subash Chander v. Mata Vbaishno Devi Shrine Board, decided on 01.12.2006 and Abdul Rehman

Bhat v. Ali Mohammad Manroo, decided on 08.07.1998.

It may not be out of place to mention here that an Order, passed under Order XXXIX Rue 1 & 2, CPC, rejecting or allowing application for grant of

temporary injunction, is appealable under Order XLIII of CPC. Appeal is provided under clause “r†of Rule 1 of the said Order, which reads as

under;

Appeals from order:- An appeal shall lie from the following orders under the provisions of Section 104, namely (r) an order under Rule

1, Rule 2, Rule 2(a), Rule 4 or Rule 10 of the Order XXXIX.

So, it is clear from the provisions of Order XLIII, CPC, that the order, whereby an application has been rejected and grant of temporary injunction

refused, is appealable. Section 115 CPC, in terms whereof revision petition on hand has been filed, provides grounds and reasons for preference of

revision, which are:

Revision:-1. The High Court may call for the record of any case which has been decided by any Court subordinate to the High Court

and in which no appeal lies thereto, and if such subordinate Court appears,

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, or

(d) to have caused failure of justice.

Subsection (1) (a), (b), (c), & (d) provide the situations when a revision would lie before the High Court, and it is clear from the provisions of

Subsection 1 of Section 115 CPC that the High Court may call for the record of any case which has been decided by any Court subordinate to it in the

cases stated in clauses (a) to (d), when appeal is not provided. The revision does not, therefore, lie against an order passed under Order XXXIX CPC,

as the said order is appealable.

In the present case, Appeal is provided under the provisions of Order XLIII Rule 1. The learned counsel for petitioner has in support of her

contentions stated that even if the appeal is provided, this revision is maintainable. In support of this contention, she has relied upon the judgment

passed by this Court in Abdul Salam Wani and Ors. v. Mohammad Subhan Khan and Ors, decided on 05.06.2010. Perusal of the said judgement

reveals that in the said case, after the application seeking temporary injunction was rejected, the aggrieved party filed an Appeal before the learned

District Judge and upon the rejection/dismissal of said appeal, the order passed in the appeal was assailed in the revision. Insofar as the instant case is

concerned, the petitioner has without availing remedy of appeal, which was available to him, has directly filed the revision petition. The judgments

referred to by the learned counsel for petitioner in support of her contention that the revision petition is maintainable, on being examined and

considered, do not support her contention or lend any support inasmuch as the said judgments are not applicable to the facts and circumstances of the

present case, as this case does not fall within the provisions of Section 115 CPC, warranting exercise of jurisdiction under the said Section. The

appropriate remedy for the petitioner was, in case aggrieved of the order impugned, to file an Appeal before the Court of learned District Judge,

Bandipora.

In the above backdrop, I do not find any merit in the submission made by the learned counsel for petitioner to hold that this revision is maintainable

against the order impugned.

Viewed in the above context, I do not find any merit in the instant revision petition and the same is, accordingly, dismissed along with connected

CM(s).