Sewa Singh vs Krishan Singh And Others

Rahul Bharti, J

Heard learned counsel for the parties.

This is a petition filed for invoking supervisory jurisdiction of this Court for examining and legality and validity of an order dated 29.08.2009 passed by the Court of learned Sub-Judge Katra on File no. 42/Civil Misc. in case titled Chanda Singh Vs Krishan Singh and others read with order dated 27.11.2012 on File no. Appeal/15 titled Late Chanda (deceased) through legal representative Sewa Singh S/o Sansar Chand R/o Kundarorain, Tehsil & District Reasi Vs Krishan Singh and others passed in the Court of learned District Judge, Reasi.

The petitioner herein is the legal representative of the original plaintiff Chanda. The original plaintiff Chanda filed a Civil Suit dating to 01.011999 against Krishan Singh and others before the Court of learned Sub-Judge, Reasi asking for a decree of declaration with respect to the nullity of gift deed dated 20.05.1972 and general power of attorney dated 22.10.1972 along with the consequential relief of permanent prohibitory injunction and mandatory injunction. The property forming the subject matter of the civil suit is the land measuring 31.9 kanals comprising khasra no. 653 and 657 in village Kundarorain, Tehsil & District Reasi.

As is borne out from the record of file of this case, the original plaintiff had submitted an application on 04.11.2006 to the Court of learned Sub-Judge Katra asking for issuance of temporary prohibitory injunction and mandatory injunction against the defendants for restraining the suit property and for retaining the suit property in its original form as existed at the time of filing of the suit and also from changing the status-quo on spot. The exact relief as sought for by the original plaintiff is reproduced here under: -

“a) that orders for demolition of the newly raised illegal construction of the house be ordered to be demolished.

b) that prohibitory injunction be issued against the defendants not to occupy any part of suit property not in their possession and not to disturb status quo on spot concerning suit land in Sr. Nos. 653 and 657 and maintain status quo on spot as the same existed at the time of filing of the suit and passing of orders by the courts.

c) that any other relief warranted on the facts and in the circumstances be also passed in kind discretion.”

The original plaintiff, on 25.03.2009, had come to present an application through his advocate before the Court of learned Sub-Judge, Katra and the caption of the said application is reproduced as under:-

“Application for bringing to the notice of the Hon’ble Court for reviving the plaintiff’s application dated November, 2006 lying dormant in coma in the voluminous life of the case since February-march, 2008 at the stage of passing necessary order thereon.”

A perusal of this application, as is available on the record of this file, reflects that it is conceded therein that the application moved by the original plaintiff in November, 2006 for temporary/mandatory injunction was reserved for orders after the hearing in the said application had taken place.

This application of the original plaintiff came to be dismissed by the Court of learned Sub-Judge, Katra vide its impugned order dated 29.08.2009. A perusal of the said order dated 29.08.2009 reflects that the learned Sub-Judge, Katra has mentioned therein that an application for temporary/mandatory injunction relief of the plaintiff filed in November, 2006 stood dismissed vide order dated 10.05.2008.

This fact so disclosed by the learned Sub-Jude, Katra is of significance reflecting that the application filed by the plaintiff for the reviving of the application for temporary/mandatory injunction was nothing but some ploy on the part of the original plaintiff and his counsel representing him in the case at the relevant point of time. It is not acceptable that the counsel then representing the original plaintiff in the Suit before the trial Court would not know about the fact of the dismissal of the said application for temporary/mandatory injunction by the trial Court vide order dated 10.05.2008. The counsel representing the original plaintiff in the Court below before filing the application for reviving the application for temporary/mandatory injunction relief ought to have first examined the court file before coming forward with a comment against the Court that it was sitting over the matter after the hearing in the said application for temporary/mandatory injunction had taken place.

Be that as it may be, the learned Sub-Jude, Katra came to dismiss the application of the original plaintiff asking for reviving of the said application for temporary/mandatory injunction. The learned Sub-Judge, Katra in his order dated 22.08.2009 while dismissing the original plaintiff’s application for revival of the temporary/mandatory injunction went on to reiterate the basis of rejection of the original plaintiff’s application for temporary/mandatory injunction relief. Though there was no need for such an indulgence on the part of the court of learned Sub-Judge, Katra, nevertheless the fact remained that the application filed by the original plaintiff for revival of his application for temporary/ mandatory injunction was dismissed.

Order dated 29.08.2009 so passed by the learned Sub-Judge, Katra came to be challenged in a miscellaneous appeal by the original plaintiff before the Court of learned District Judge, Reasi who in turn came to dismiss the said appeal vide its order dated 27.11.2012 on the legal ground that the order impugned of the learned Sub-Judge, Katra was not amenable to appeal.

It is now against the said two orders of the court of learned Sub-Judge, Katra and the court of learned District Judge, Reasi that the petitioner ventured his present petition under section 104 of the then Constitution of Jammu and Kashmir vesting supervisory jurisdiction in this Court vis-à-vis the courts below.

This Court does not find any reason/basis for lending any indulgence in the matter on the simple ground that in case the petitioner was having any grievance then that should have been against an order dated 10.05.2008 whereby the application for temporary/mandatory injunction was declined. Said order dated 10.05.2008 was surely amenable to an appeal under the provisions of Order 43 Rule (1)(r) CPC. This Court has failed to understand the hesitancy on the part of the petitioner in not filing an appeal against the said order in the year 2009 itself when the learned Sub-Judge, Katra in its order dated 22.08.2009 came to disclose this fact of rejection of the original plaintiff’s application for temporary/mandatory injunction. Not only this, the original plaintiff chose to waste time by preferring an appeal against the said order 22.08.2009 by assuming at his own that the order dated 22.08.2009 was an order whereby the temporary/mandatory injunction application of the original plaintiff has been dismissed and the same was amenable to appeal. In fact, from the tone and tenor of the submission of learned counsel representing the petitioner before this Court, it is gatherable that the thrust of the submission is as if this petition is in the context of examining the legality and validity of an order passed under Order 39 Rule 1 and 2 CPC followed by the appellate order passed under Order 43 Rule(1)(r) CPC.

This Court is thus not satisfied that the petitioner has any case to ask for any sort of supervisory indulgence from this Court. In case, if the original plaintiff or for that matter the petitioner who has stepped in to the shoes of the original plaintiff as legal representative had and has any grievance against the order dated 22.08.2009 in the context of the observations made by the learned Sub-Judge, Katra therein then the application should have been filed for seeking expungement of that particular portion of the order whereby the learned Sub-Judge, Katra reiterated the basis of rejection of the original plaintiff’s application for temporary/mandatory injunction but not an appeal without any provision providing for such an appeal.

Hence this petition is held to be meritless and dismissed. Interim directions passed in the case shall stand vacated. Copy of this judgement be forwarded to the court of learned Sub-Judge, Katra with a direction to expedite the trial of the aforesaid Civil Suit pending on its docket since 1999.

Announced.