Gh. Mohi-u-Din Malla vs Mst. Sara and Another

Muzaffar Hussain Attar, J.—A Civil Original Suit was filed by the Respondent No. 1 against the Petitioner and other person which is

pending adjudication on the files of learned 1st. Additional Munsiff, Srinagar. An ex parte ad interim order was passed in the suit on 04-10-2010,

wherein and whereunder the Petitioner was temporarily restrained from installing Bend saw Mill on the suit land. The order was, however, made

subject to objections of the other side and Petitioner was given liberty to approach the Court for modification, variation or discharge of the order.

Thereafter, the learned trial Judge passed the order which is impugned in this petition and in terms of the said order, the Police station, Parimpora

was directed to ensure implementation of the Court order dated 04-10-2010. The police was also directed to furnish compliance report before

next date. The application has been disposed of but the order does not bear any date.

Heard learned Counsel for the parties. Considered the matter.

Learned Counsel for the Petitioner submitted that the Petitioner is running a Bend saw Mill on the suit land from the year 1985. It is further

submitted that the Respondent No. 1 did not comply with the proviso 3 to order 39. It is further submitted that without affording opportunity to the

Petitioner to project his case before the learned trial Court, the order impugned has been passed having the effect of, literally, allowing the suit.

Learned Counsel for the Respondents submitted that this revision petition is not maintainable as the order has been passed in the application

under order 151 CPC for implementation of the earlier order passed by the learned trial Judge. He also submitted that the learned trial Judge was

duty bound to protect the lis as the Petitioner, in terms of Rule 4 of order 39, can file objections seeking vacation/modification of the order.

The order dated 04-10-2010 has been passed in ex parte. The Court, which has passed the order, has the power to seek its implementation

through any lawful agency which includes police agency as well. This power, however, is to be exercised with extreme caution and restraint is to be

shown and the Court has to be, prima facie, satisfied on the material brought before it that implementation of its order is warranted forthwith. In the

normal course, when such application is filed, the other side shall be put on notice and afforded opportunity to project his/her/their case before the

Court. The Court, after getting the material on both sides, can have proper view of the matter and then can pass orders in accordance with law

which are within its discretion which may include seeking implementation of its order through police even. In this case, no opportunity has been

granted to the Petitioner for filing objections to the application. The learned trial Judge has not even recorded one single reason for issuing the

impugned order. In the facts and circumstances of this case, the order impugned has been issued with material irregularity and is illegal and cannot

thus, survive.

For the above stated reasons, this petition is allowed. The order impugned, where which, police station Parimpora has been directed to

implement the ad interim ex parte order, is, accordingly, set aside.

Civil Revision is disposed of along with CMPs.