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Judgment
Sanjeev Kumar, J
This Civil Miscellaneous Appeal filed under Order 43 of the Code of Civil Procedure, is directed against an order dated 12th September, 2023, passed by the learned 4th Additional District Judge, Srinagar [for short “the Trial Court”] in the civil suit titled “Jammu & Kashmir Yateeem Foundation VS Jammu and Kashmir Bank and Others”.
Briefly put, the facts leading to the filing of this appeal by the appellant (Respondent No. 9 in the suit) are that, a suit in the name of Jammu and Kashmir Yateem Foundation through its Chairman Mohammad Ahsan Rather was filed against the Jammu and Kashmir Bank and Others, in the Trial Court on 27th December, 2021. The Respondent No. 1 (Plaintiff in the suit) also filed along with the suit, an application for an interim injunction for allowing him to operate various bank accounts opened in the name of Jammu and Kashmir Yateem Foundation at different branches of the Jammu and Kashmir Bank as well as in the branches of Axis bank, State Bank of India, etc., etc.
As is projected before this Court the plaintiff was forced to institute a suit when he was confronted with an email dated 13th December, 2020, issued by the Jammu and Kashmir Bank for submission of “Know Your Customer (KYC)” particulars. It may be noted that when the suit was initially instituted, the appellant was not arrayed as a defendant. It is only after an application in this regard was made by the applicant, he was arrayed as party defendant No. 9 in the suit.
Be that as it may, on the very first date when the suit was presented and the application for interim injunction filed under Order 39 Rule 1 CPC was considered, an ad-interim ex-parte injunction was issued allowing the plaintiff to operate bank accounts. However, when the appellant herein was impleaded as party defendant No. 9, he moved an application for vacation of the order of injunction granted by the Trial Court. The application for interim injunction filed by the plaintiff and the application filed by the defendant No. 9 for vacation of the ad-interim ex-parte injunction was considered by the Trial Court and vide its order dated 27th April, 2023, a consent order was passed, whereby plaintiff Mohammad Ahsan Rather and defendant No. 9-Syed Abdul Hamid Shah were both permitted to operate the bank accounts jointly, maintained by the Jammu and Kashmir Yateem Foundation/Trust for meeting out day-to-day expenses of the said Trust/ Foundation. Consequently, the application for interim relief filed by the plaintiff along with his suit was finally disposed of.
It seems that on the very next day i.e., on 28th April, 2023, the plaintiff filed an application seeking to keep order dated 27th April, 2023, in abeyance till further orders or for modification of the order dated 27th April, 2023, so as to allow the plaintiff alone to operate the bank accounts. Interestingly, the Trial Court not only entertained the application but without putting the defendants in particular the defendant No. 9 on notice, passed an ex parte order dated 28th April, 2023, permitting the plaintiff alone to operate the bank accounts opened at different branches of the Jammu and Kashmir Bank, thus modifying its earlier order dated 27th April, 2023. This ex parte order of the Trial Court dated 28th April, 2023, was called into question by the defendant No. 9 (“the appellant herein”) before this Court in
This Court allowed the petition vide its order dated 15th May, 2023, and set aside the order dated 28th April, 2023, passed by the Trial Court on the ground that the same had been passed at the back of the defendant No. 9. A direction was issued to the Trial Court to decide the application of the plaintiff afresh after affording reasonable opportunity of being heard to the petitioner. Seven days’ time was granted to the Trial Court to dispose of the application. This is how the matter once again landed before the Trial Court for consideration.
The Trial Court vide its order impugned in this appeal decided the application of the plaintiff for interim relief as also the application submitted by the defendant No. 9 for seeking its vacation afresh without first deciding the application made by the plaintiff seeking to keep order dated 27 th April, 2023, in abeyance, and made the ad interim ex parte order issued by the Trial Court on 27th December, 2021, absolute till conclusion of the Trial. It is this order of the Trial Court dated 12th September, 2023, which is called in question in this appeal.
Mr. G.A. Lone, learned counsel appearing on behalf of the appellant submits that the impugned order is not sustainable in law, in that the Trial Court has not considered the application moved by the plaintiff seeking to keep in abeyance the order dated 27th April, 2023. He submits that the Trial Court erroneously disposed of the application for interim relief once again being ignorant of the fact that the aforesaid application already stood disposed of by the Trial Court vide order dated 27th April, 2023. It is argued by Mr. G.A. Lone, learned counsel for the appellant that the Trial Court could not have reconsidered the application for interim relief filed by the plaintiff under Order 39 Rule 1 CPC without first dealing with order dated 27th April, 2023, whereby the said application stood finally disposed of.
Per contra, Mr. Z.A. Qureshi, learned senior counsel appearing on behalf of the plaintiff (respondent No. 1 herein) submits that in terms of the order impugned, the Trial Court has disposed of all the applications. He further submits that from the reading of the order impugned it would clearly transpire that the appellant had not objected to the consideration of interim relief application afresh and it is because of this reason only that the learned counsel appearing for the appellant addressed arguments on the merits of the application for interim relief.
Having heard learned counsel for the parties and perused the material on record, I am of the considered opinion that the Trial Court has not carried out the mandate of the directions passed by this Court in its order dated 15th May, 2023, passed in CM(M) No. 91/2023. From reading of the operative para of the judgment i.e., Para 5, it clearly transpires that the writ petition was disposed of with a clear direction to the Trial Court to decide the application i.e., application moved by the plaintiff for keeping in abeyance the order dated 27th April, 2023, afresh after affording reasonable opportunity of being heard to the petitioner herein. The Trial Court did not consider the application of the plaintiff for seeking virtually the recall of the order dated 27th April, 2023, and instead embarked upon reconsideration of the application of the plaintiff filed under Order 39 Rule 1 CPC for grant of interim relief, ignoring the fact that the said application stood finally disposed of vide order dated 27th April, 2023. So long as the order dated 27th April, 2023, is intact, the application for interim relief which stood already disposed of cannot be reconsidered. The Trial Court should have first adverted to the application of the plaintiff for seeking a recall of the order dated 27th April, 2023. It was only after the Trial Court would agree with the plaintiff and withdraw the order dated 27th April, 2023, the application for interim relief could have been decided afresh on merits.
Needless to say that the order dated 27th April, 2023, was a consent order and a heavy burden was on the plaintiff to show that the consent was obtained by fraud or was the result of a bonafide mistake of fact. It was again for the plaintiff to come up and show that the person who consented before the Court for passing of the order dated 27th April, 2023, was not the person authorized by the Foundation/Trust to make such concession. It is only after considering the application on the grounds taken therein and in the light of objections raised thereto by the defendant No 9, an appropriate order in this regard could have been passed.
From reading of the entire order impugned in this appeal, it is not forthcoming that this aspect of the matter was adverted to by the Trial Court at any stage. It seems that the Court presumed that the order dated 27th April, 2023, has gone with the passing of the order dated 15th May, 2023, by this Court and it is called upon to reconsider the interim application on merits. There was thus inherent fallacy in understanding the issue and the import of the directions issued by this Court vide order dated 15th May, 2023.
The Trial Court commences his order by saying that he is going to dispose of two applications one filed by the plaintiff for grant of ad-interim relief and the other application filed by the defendant No. 9 for its vacation. After wrapping up the submissions of learned counsel for the parties, the Trial Court in Para 29 makes its intention manifest that it was seized of the application for grant of ad-interim relief filed by the plaintiff and an application filed by the defendant No. 9 for vacation of the interim order dated 27th December, 2021. It is true that in Paragraph 26, the Trial Court has shown its awareness about the orders passed on 27th April, 2023, and 28th April, 2023, but does not deal with the aforesaid orders in the light of application filed by the plaintiff. Order dated 27th April, 2023, is neither held bad in law nor recalled by the Trial Court.
In view of the aforesaid position, it was not available to the Trial Court to consider the application for interim relief filed by the plaintiff, which stood finally disposed of vide order dated 27th April, 2023. The plea of the senior counsel appearing on behalf of the plaintiff that the participation of the Defendant No. 9 in the arguments addressed on the application for interim relief obviates the necessity of dealing with order dated 27th April, 2023, is not correct in law and cannot be accepted. On being asked by the Trial Court, the counsel for the defendant No. 9 may have addressed arguments on merits in respect of interim relief, but the fact remains that mere participation of the counsel for the defendant No. 9 in the arguments does not automatically tantamounts to recall of the order dated
27 th April, 2023. This Court would have appreciated had the Trial Court recorded such consent, if any, given by the defendant No. 9 and formally recalled the order dated 27th April, 2023, and then considered the application for interim relief. This has not happened in this case. The position in the record as on date is that the order dated 27th April, 2023, is intact, meaning thereby that the application for interim relief is finally disposed of. The impugned order has thus decided the disposed of applications yet again, which is not permissible in law.
For the foregoing reasons, I find merit in this appeal and the same is accordingly allowed. The impugned order dated 12th September, 2023, passed by the Trial Court is set aside. The matter is remanded back to the Trial Court to proceed in the following manner:-
a. To decide the application of the plaintiff seeking to keep in abeyance the order dated 27th April, 2023, in the light of directions passed by this Court on 15th May, 2023, in CM(M) No. 91/2023.
b. Should the Trial Court accept the application of the plaintiff and recalls the order dated 27th April, 2023, on merits, of course, after affording reasonable opportunity of being heard to the defendant No. 9, it may proceed to decide the application for interim relief afresh.
The appeal is accordingly disposed of along with connected CM(s).