Abdul Sattar Lone vs Hakim Baha-ud-din

Sunil Hali, J.—The brief facts of the case are that a suit for permanent prohibitory injunction was filed by the plaintiff/respondent against the

defendant/petitioner regarding shop No. 1 located in ground floor of the house belonging to the petitioner/defendant. It was alleged in the plaint that

the respondent/plaintiff was a tenant. Further a decree for permanent prohibitory injunction was also sought restraining the petitioner/defendant not

to dispossess the petitioner. Alongwith the suit an application for interim injunction was also filed. The trial court vide its order dated: 2.8.2006

directed the maintenance of status quo on the spot. This order was subject to the objections of the other side.

The respondent/plaintiff filed an application on 28.4.2007 seeking implementation of order dated: 21.08.2006 through SHO, Baramulla for

restoring the possession of the shop to him. On this application being filed, the learned trial court directed the SHO, Baramulla to submit his report

in light of the order passed on 21.8.2006. It is this order of the trial court which has become subject matter of challenge in this revision petition.

3.I have heard learned Counsel for parties and perused the record. While scanning through the contents of the application, the respondent/plaintiff

has admitted that he is out of possession and it is imperative that his possession be restored so that he is in a position to run his business. In essence

he has sought a direction from the court to restore him the possession of the shop through the intervention of SHO, Baramulla. The court has

without putting the other side to notice directed the SHO, Baramulla to submit his report. Even though the direction of the trial court looks

innocuous, prima-facie and does not determine any of the rights of the parties to the proceedings, but on deeper scrutiny the power of the trial

court to issue such a direction seems without jurisdiction. No such direction can be issued in terms of Or. 39 Rules 1 and 2 or Section 151 of the

CPC. The trial court seems to have proceeded to issue direction to SHO Baramulla to report the position on the spot in light of the direction

passed on 21.8.2006. Intrinsic in such a direction is the fact that the possession as it existed on 21./8i.2006 has to be restored. Even though the

trial court has not categorically stated the same. How could the trial court proceed in the matter once the plaintiff/respondent itself admits that he is

out of possession. The trial court should have examined the contents of the application before issuing such a direction. The court has been oblivious

to the fact that the plaintiff is out of possession and to issue such a direction is to create evidence in favour of the plaintiff. The trial court without

examining the source of the power that he was exercising has issued a direction which is without jurisdiction. The tenant on his own admission

states that he is out of possession. The remedy to seek restoration lies some-where-else and not in the present proceedings. The trial court has

exceeded his jurisdiction in issuing such a direction. I find force in the argument of Mr. Lone and the present revision petition is accordingly allowed

and the order dated. 21.5.2006 is set aside.

A prayer has been made by learned Counsel for petitioner that the case may be transferred to some other court. The prayer has not been

resisted by learned Counsel for respondent. I, therefore, direct that this case to be transferred from the court of Munsiff, Judicial Magistrate,

Baramulla to the court of Sub-Judge, Baramulla where the parties through their counsel are directed to cause presence of their clients on

15.4.2008.

Before parting with this judgment I would like to state that it has been consistently observed by this Court that order of injunction are being

implemented through police agencies. The trial courts are oblivious to the- provision of Or. 39 Rule 2-A CPC before taking recourse to such an

issue. It is hoped that in future the courts will observe the provisions of CPC before taking recourse to such an action. Petition is accordingly

disposed of alongwith connected CMPs.