Ghulam Ahmad Dar and Others vs Mushtaq Ahmad Shah and Others

Mansoor Ahmad Mir, J.—This revision petition is directed against the order dated 15-9-2005 passed by Munsiff, Kupwara, in an

application titled as Mushtaq Ahmad Shah v. Ghulam Ahmad Dar and Ors. moved by the defendants.

It is profitable to give a flask back of the case the womb of which has given birth to the revision petition in hand.

It appears that plaintiff, Mushtaq Ahmad Shah, filed a suit for grant of decree of permanent injunction against the defendants along with an

application for grant of interim relief. On 28-5-2004, learned Munsiff, on the application for grant of interim injunction, passed an order, operative

portion of which reads as under:

Meanwhile the objections are filed and considered parties are directed to maintain status quo on spot. This order, however, shall be subject to

filing of objections by the other side who shall be at liberty to apply for modification, alteration or cancellation of this order even before the next

date fixed in the case.

The trial Court, after hearing the parties, finally decided the application for grant of interim injunction vide order dated 27-9-2004, which reads

as under:

Counsel for parties present. Heard the ld. Counsel at length. Perused record available with the file. Considering the arguments of the ld. counsel for

defendants & perusal revenue extract. The word status qua is spell out like this. The party who is in actual possession will continue with the

possession till disposal of main suit. The application is accordingly disposed of. Be the part of main file.

On 19th April, 2005, plaintiff moved an application that the defendants are raising construction in violation of the order passed by the Court.

The learned Munsiff directed the police concerned to implement the order dated 27-9-2004. SHO P/S Trehgam submitted report on 29th April,

2005.

The trial Court appointed Commissioner who submitted report that the construction process was complete upto plinth level. On consideration of

the said report, the Court directed police concerned to implement the Court order strictly and matter was fixed on 10th June, 2005. The learned

Munsiff passed detailed order on 10th June, 2005, operative portion of which reads as under:

In this connection two separate Commissioners were appointed. One advocate from the bar and another Nazir of the Court. As far as the report

of the former Commissioner is concerned the construction process was complete up to the plinth level. Thereafter another order was issued

wherein P/s concerned was directed strictly to implement the Court order. The grievance of applicant still was that the Court order is being floated

by the non-applicant. Thereafter the Nazir of the Court was appointed Commissioner who was directed to go on spot and monitor the situation.

Nazir of the Court proceeded on spot and found because of the Friday construction process is stopped. However, it is spectacularly evident from

the face of construction that construction has been raised up to the first storey and it is evident that Court order has not been implemented by the

P/s concerned in letter and spirit.

Therefore, once again S. P. Kupwara is directed to implement the Court order in letter and spirit and construction process be stopped till further

orders. However a separate Robkar has been framed against the SHO concerned for non compliance of the Court order in letter and spirit. A

copy of this order will be sent to D.G. Jammu and Kashmir State for information. Hence both the applications are accordingly disposed of.

The defendants, feeling aggrieved of order dated 10th June, 2005, preferred a revision petition No. 86/2005 before this Court which came to

be dismissed vide order dated 21st July, 2005. However, it was left open to the defendants to apply for modification of the order.

It appears that defendants filed an application on 30th July, 2005 for vacation of order dated 10th June, 2005 read with order dated 27th

September, 2004. It is profitable to reproduce the relief clause of the said application which is as follows:

It is accordingly prayed that the order dated 10-6-2005 read with order dated 27-9-2004 passed in the above titled applications be vacated and

the applicant be allowed to use the suit property the manner he likes. Any other relief be also granted in favour of the applicant as the Hon'ble

Court deems just and proper in the facts and circumstances of the case.

The trial Court, after hearing the parties, dismissed the application and passed order dated 15-9-2005 which shall be, hereafter, referred to as

impugned order. Feeling aggrieved of the said order, the revision petition in hand has been preferred. It is profitable to reproduce the impugned

order herein, which reads as under:

The instant application came to be presented by counsel for the applicant for modification/vacation of order passed on 10-6-2005 and 27-9-2004

by this Court. The application came to be presented in terms of order dated 21-7-2005 passed by their Lordships Hon'ble Mr. Justice S. N. Jha,

The Chief Justice J & K High Court.

The order dated 10-6-2005 passed by this Court was challenged by virtue of a civil revision No. 86/2005 on various grounds. However, their

Lordships were pleased not to disturb the order passed by this Court on 10-6-2005. At the same time the petitioner, applicant herein is left at

liberty to file application for modification of the order by virtue of which construction process is stopped.

Heard arguments advanced by ld. counsel for the parties and perused the contents of application, objection and material placed on record

meticulously. It is spectacularly evident from the face of order dated 21-7-2005 passed by their Lordships that application is to be entertained only

with regard to subsequent order passed by this Court on 10-6-2005 by virtue of which construction is stopped. Therefore, the order stopping the

construction by police machinery was passed only to implement the earlier order passed by this Court on 27-9-2004 and subsequent order was

made ""till further orders"" meaning thereby something more was required to be done. Further with regard to same subject-matter two injunctions

are operating.

In totality I have given thoughtful consideration to the arguments advanced by the parties and after taking into account the above observation. I am

of the considered opinion that order dated 10-6-2005 is of no use in subsistence of the interim order dated 27-9-2004 which has now been

implemented by the non-applicants in letter and spirit. Therefore order dated 10-6-2005 is modified. The application is accordingly disposed of

which shall form part of the main file.

While going through the trial Court record, it appears that petitioners herein have not disclosed all facts and the developments which have

taken place during the pendency of the revision petition No. 86/ 2005 and concealed some facts.

Defendants had moved an application on 9th June, 2005 for modification of the order dated 27th September, 2004 which came to be

dismissed vide order dated 9th July, 2005. It is profitable to reproduce the operative part of the said order herein, which reads as under:

...After hearing counsel for both the sides and meticulous perusal of record it is spectacularly evident that the contents of the application does not

disclose that a change in the circumstances of the case has taken place nor an undue hardship has been done to the applicants. The language of the

application is unknown to the civil jurisprudence nor it seems to be legal. From the face of Commissioner's reports and photographs appended

therewith it clearly visualizes that some part of the construction has been raised after the status quo order was passed on 28-5-2004 meaning

thereby violation of Court order has taken place for that matter contempt petition is pending before this Court. Therefore, the conduct of applicants

in connection with the subject matter of the suit seem to be doubtful and unfair. With these observations I am of the considered opinion that

counsel for the applicants has not succeeded in getting his application within the domain and parameters of Order 39 Rule 4 of CPC. Applications,

in my opinion, is devoid of any merit which deserves to be dismissed. Hence dismissed. The application is accordingly disposed of which shall form

part of the main file.

The petitioners have suppressed this fact before Court when revision petition No. 86/2005 came up for consideration and was heard and

decided. Had this fact been brought to the notice of this Court perhaps the observation made in the order referred, hereinabove, would not have

been made.

It is useful to notice the relevant portion of order passed by this Court in Civil Revision 86/2005 which reads as follows:

...The point for consideration is whether the order stopping construction process in the facts and circumstances war-rants interference by this

Court. The reliance on the order dated 27-9-2004 in my opinion is of no avail to the defendants. All that the order stated was that the party who is

in actual possession will continue with the possession till disposal of the main suit. This order was passed while explaining the scope of the status

quo order. Literally 'status quo' means ""the situation that currently exists"", and the order of status quo means that the situation currently existing i.e.

at the time of the order should not be changed. The order of status quo sometimes creates difficulties in its implementation. Plainly stated, the

import of the order is that nothing further be done with respect to the subject of the dispute so as to change its features or character where the

subject matter of dispute is some tangible property. The order dated 27-9-2004 thus merely meant that if the defendants are in possession of the

suit they were not to be dispossessed till disposal of the suit. But this does not mean that they could make any construction. The order forbade hot

only the defendants but also the plaintiffs from altering the situation as obtaining on the date of the order. That is how the Court explained its order

observing that the party who is in actual possession will continue with the possession.. Construction, if any, therefore was in violation of the Court's

order. Stopping further construction therefore cannot be said to be illegal so as to warrant interference by this Court...

While going through order, this Court has made clear that status quo means that the parties cannot make an addition or alteration and held that

construction, if any, was raised in violation of the Court order, stopping further construction, therefore cannot be said to be illegal warranting

interference by this Court.

The trial Court has also passed detailed order on 9th July, 2005, referred here-inabove, and has come to the conclusion that the parties cannot

make alterations or raise any construction.

It is beaten law of the land that 'status-quo' means that whatever position is existing on spot is to be maintained.

In Black's Law Dictionary, the word 'status-quo' has been defined as under:

Status-quo:- The situation that existed before something else (being discussed) occurred.

In New Shorter Oxford Dictionary, the word 'status-quo' has been defined as under:

Status-quo: The existing state of affairs.

In Wharton's Law Lexicon, the word 'status-quo' has been defined as under:

Status-quo: the existing state of things at any given date; e.g., Status quo ante bellum, the state of things before the war.

In New Webster's Dictionary, the word 'status-quo' has been defined as under:

Status-quo: The State in which anything was or is; the existing state of affairs.

While going through the aforesaid definitions, one come to an inescapable conclusion that 'status-quo' means that the existing position at the

time of order should not be changed which means that in no way the features or character of the subject matter should be altered or changed.

Coming to the impugned order whether the same has been passed rightly or wrongly.

In the given circumstances, the trial Court has passed order dated 10th June, 2005 in order to implement the order dated 27-9-2004. The trial

Court has used words 'till further orders' in the said order and this Court accordingly made clear that defendants can seek clarification.

The trial Court has rightly held that order of status-quo has been passed on 27-9-2004 and in order to implement the said order the Court

passed order dated 10th June, 2005 whereby it commanded the Superintendent of Police to stop the construction till further orders. The aim of

said order was to implement the order dated 27th September, 2004, referred hereinabove.

In the given circumstances, it has been rightly held that there was no need to pass any further direction because of the fact that the said order

stands implemented.

I, in the given circumstances, find no error in the impugned order.

Keeping in view the above said facts, I am of the considered view that revision petition merits to be dismissed and petitioners are to be

saddled with costs.

Accordingly, the revision petition is dismissed and the petitioners are saddled with costs of Rs. 5,000/- The costs be deposited in the

Advocate's Welfare Fund, Kupwara.

Any observation made, hereinabove, however, shall not influence the mind of the trial Court while deciding the application filed by the plaintiff

on 19th April, 2005 for drawing action against the defendants.

Accordingly, the revision petition is dismissed along with all connected CMP (s). Send down the record along with a copy of this order.