Residents of Naik Mohalla and Others vs Commr./Secy. Social Welfare and Others

Mansoor Ahmad Mir, Judge

This revision is directed against the order dated 26.04.2011 passed by Principal District Judge, Shopian in case titled Residents of Naik

Mohalla & others v. Commissioner Secretary, Social Welfare Kashmir & others, whereby and where-under the application of private respondents

came to be allowed.

It appears that suit for declaration and mandatory injunction came to be filed before the trial court-District Court Shopian and order of status-

quo granted vide order dated 31.08.2009, was made absolute on 23.11.2009 on the statement of Public Prosecutor-official

respondents/defendants 1 to 5 in the suit.

Virtually there was no representation on behalf of private respondents-defendants 6 to 10 before the trial court either on the date of granting

status-quo order in exparte or on 23.11.2009 when the said order was made absolute. Private respondents-defendants 6 to 10 after noticing the

said order made an application for vacation of the same, which was allowed vide order dated 26.04.2011, impugned herein.

It appears that the subject matter of the suit is Advertisement Notice No. CDPO/ICDS/SPN/08/1175-81 published in Daily Kashmir Uzma in

its issue on 16.07.2008. The prayer made in the suit is to declare the said advertisement as null and void, with a further prayer to command the

official respondents to cancel the Anganwari Centre established at Dar Mohalla (Bonpora) Nildoora, Shopian and to create/shift the same to Naik

Mohalla and also to restrain them from making appointment against Anganwari Centre Dar Mohalla Bonpora.

Private respondents-defendants 6 to 10 made an application that they are necessary parties and without hearing them interim direction was

made absolute at the request of Public Prosecutor, who has no right and power to appear on their behalf. Virtually the order has the effect of

depriving private respondent-defendant Rohi Gull to perform her duties.

It appears that the engagement of said respondent/defendant was made before filing of the suit and the interim order has the effect of depriving

her from performing her duties. The trial court after going through the averments contained in the plaint and the case projected by the private

respondents-defendants 6 to 10 vacated the interim order by holding that defendants 6 to 10 were not heard and that the order of status-quo is

running against respondent-defendant Rohi Gull, who has already been appointed. Accordingly, the trial court while exercising power in terms of

Order 39 Rule 4 CPC withdrew the order of status-quo and made the engagement of respondent-defendant Rohi Gull subject to the outcome of

main suit.

Now the question for consideration is whether the Civil Court has the jurisdiction to entertain such suit and grant the relief as prayed by the

petitioners-plaintiffs.

Petitioners-plaintiffs have not questioned the appointment of respondent-defendant Rohi Gull. How they are aggrieved of the order is not

forthcoming. The relief sought by them is to declare the advertisement notice as null and void, to cancel the Anganwari Centre established at Dar

Mohalla (Bonpora), Shopian and to create/shift the same to Naik Mohalla and also to restrain the official respondents/defendants from making

appointment against Anganwari Centre Dar Mohalla.

The said relief cannot be granted at the interim stage. As discussed hereinabove, the question whether the Civil Court has the jurisdiction to

entertain such suit is to be gone through. The Centre stands established and selection/engagement stands made, so the trial court has rightly made

the engagement of private respondent-defendant Rohi Gull subject to the outcome of suit. It is a legal order and appears to be sound, thus has

exercised discretion rightly in favour of private respondents-defendants 6 to 10. Further any order passed in terms of Order 39 Rule 4 is

appealable and no revision lies. Thus no this score also the revision petition merits to be dismissed.

Having glance of the above discussion, no case for interference is made out. Accordingly the revision petition is dismissed along with all CMPs.

Interim direction stands vacated.