Syed Towheed Ahmad Shah And Another vs Mohammad Akbar Malla And Another

The petitioners in this petition have invoked the supervisory jurisdiction by this Court vested in terms of Section 104 of the Constitution of Jammu and Kashmir, for seeking quashment of the Order dated 05.10.2018 passed by the learned Sub Judge, Pattan, in a Civil Suit titled Mohammad Akbar Malla versus Syed Towheed Ahmad and others.

Briefly stated the facts as gatherable from the record are: the suit for Injunction came to be instituted by respondent no.1(plaintiff) in the court of Sub-Judge, Pattan (for brevity the"Trial court") against the petitioners (defendants), claiming,inter alia, a decree of permanent prohibitory Injunction restraining the petitioners herein and proforma respondent from causing any sort of interference with the peaceful possession and ownership of two shops situated in shopping complex constructed on the land measuring 02 Kanals and 17 ½ Marlas falling under survey No. 892 Min situated at DiwarYakmanporaPattan. The suit was contested by the petitioners along with proforma respondent by filing written statements. The stand taken by the petitioners is that they are in occupation of the two shops in question in their capacity as tenants of the respondent no. 1 and therefore, in settled possession thereof.

The matter was considered by the Trial court after affording opportunity to address the arguments by the learned counsel for the both sides and vide its Order dated 19th October, 2015,the Trial court, while modifying the earlier interim order dated 13th August 2015, directed the parties to maintain status quo with respect to the suit property till disposal of the main suit. The aforesaid interim direction was passed by the Trial court after returningprima faciefindings of the fact that the petitioners were in possession of the suit shops. The respondent no.1 challenged the aforesaid interim order by way of an Appeal before the First Additional District Judge, Baramulla (hereinafter referred asthe "Appellate court"). The Appellate court maintained the status quo passed by the Trial court with regard to the maintaining of the status quo, but provided that the petitioners shall furnish undertaking to the extent:

a) that they will regularly pay the rent, including the arrears thereof, as is determined during the trial of the main suit;

b) that in case respondent no.1 succeeds in proving his case then in that eventuality the petitioners as also proforma respondent shall pay adequate compensation, as is determined and ordered by the trial court;

c) the undertaking shall be furnished before the Trial Court on the next date of hearing fixed before the said court.

It may be relevant to point out at this stage that as per the statement made by the parties before this Court, the petitioner no.1 alone has furnished the requisite undertaking as directed by the Appellant court, whereas petitioner no. 2 has failed to do so.

Be that as it may, it further transpires that the respondent no. 1 filed an application before the Trial Court seeking implementation of the Order passed by the Appellate court. The Trial Court after affording opportunity and after hearing both the sides passed the Order dated 05.10.2018, impugned in this petition.

The Trial Court directed the petitioners to deposit a sum of Rs.5000/- per shop along with the arrears. It was further provided that the order shall have the effect from the date of institution of the main suit. The aforesaid order, as it would transpire further, was not complied with by the petitioners and the Trial Court proceeded in the matter and issued attachment warrant to be executed through SHO concerned. Although, subsequent Order dated 30th January, 2019 passed by the Court during the course of hearing has not been specifically challenged in the petition, yet perusal whereof indicate that the Trial Court has proceeded to execute its earlier order dated 05.10.2018, which is impugned in this writ petition.

It was also urged that pursuant to Order passed by the Trial Court seeking compliance of the Order impugned, the petitioners have also been taken into custody by the SHO concerned, though there is no specific order from the Court.

Having heard learned counsel for the parties and perused the record, I am of the view that the Order dated 05.10.2018, insofar as it pertains to determination of the monthly rent of the shops @ Rs. 5000/-per shop is concerned, is not sustainable. The Order of the Appellate court dated 18.05.2017 is clear and unequivocal. The rent payable qua the suit shops is to be determined by the Trial Court during the trial of th suit. In the order impugned, I do not find any such determination made by the Trial Court. Determination of the issuewould require giving fair opportunity to the either side to bring on record the relevant material to facilitate the Court to arrive at a figure that would represent the monthly rental payable for the suit shops. Without having fair determination of the issue and without following the procedure known to the law, the Trial Court could not have fixed Rs. 5000/- per shop as a rent payable by the petitioners.The Trial Court has obviously exceededits jurisdiction and has acted in a manner which has resulted in serious miscarriage of justice, warranting interference by this Court under its supervisory jurisdiction.

In view of the foregoing reasons, I am inclined to accept this petition and set aside the order impugned dated 05.10.2018 passed by the Trial Court. Ordered accordingly.

The passing of this order, however, shall not absolve the petitioners of their liability to pay monthly rent of the suit shops in terms of the order of the Appellate court. With a view to give effect to the Order of the Appellate court, it is obligatory on the Trial Court to first determine the fair rent that, in its opinion, should be payable for the suit shops.For doing so, the Trial court may embark upon summary enquiry and allow the parties to put up their respective stand and material. It is upon the said determination by the Trial court, the amount shall become payable by the petitioners as rental of the suit shops. Till such determination is made, keeping in view the facts and circumstances, nature of the property and locality where it is situated, this Court deems it fit to fix tentative rent of Rs. 2000/- per month per shop which shall be payable by the petitioners to the respondent no.1 along with arrears to be calculated from the date of institution of the suit. The aforesaid rent fixed by this Court is tentative and would be subject to variation upon determination by the Trial Court after following proper procedure.

It is also provided that in case, the petitioners or any of them has not submitted the requisite undertaking before the Trial court, the Trial court shall proceed in the matter in accordance with law notwithstanding this order passed by the Court.

Since the order impugned has been set-aside and issue has been left to be determined by the Trial court, the warrants of attachment/arrest, if any, shall stand withdrawn and the petitioners are set at liberty.

Disposed of along with connected IA(s).