Raja vs Khatija

Nobody has appeared in this case on last date of hearing. No one is present today also.

In this revision petition, order dated 15th of October, 2008 passed by learned SubJudge, Badgam is called in question, whereby and

whereunder learned trial Judge in exercise of its powers under section 151 of C.P.C has directed the parties to maintain the position of subject

matter of the suit land obtaining on spot on the date of issuance of impugned order. This order has been kept operational till further orders or till

disposal of the suit.

It appears that suit for declaration and injunction was instituted by respondents against petitioner in respect of land which includes both the

shamilat land and kahcharai land. Petitioner has stated in the revision petition that he had filed an application under order 7 Rule 11 seeking

rejection of the plaint on the ground that learned civil court is lacking jurisdiction because of bar contained in J&K Agrarian Reforms Act and J&K

Land Revenue Act. The learned trial court, however, without considering the application of the petitioner passed the impugned order.

Perusal of the impugned order reveals that learned trial Judge has referred to some of pleadings of the parties and thereafter recorded findings

that the respondents have no prima facie case in their favour, neither case is made out under order 39 Rule 1 of C.P.C for grant of injunction.

Further findings have been recorded that the respondents will not suffer any irreparable injury. Learned trial Judge has further recorded that even

the interest of justice do not tilt in favour of respondents. After recording these findings the learned trial Judge, however, without recording any

reason invoked the provisions under section 151 C.P.C and directed the parties to maintain the position of the suit property till further orders or till

disposal of the suit.

The impugned order is bad for the following reasons:

The learned trial Court was duty bound after an application was filed under order 7 Rule 11 of C.P.C to find out as to whether suit instituted was

maintainable. Apart from the filing of application by the petitioner seeking rejection of the plaint, a duty was cast on the learned trial court to apply

its judicial mind to the pleadings in the plaint to find out as to whether suit is maintainable or is barred by statute.

After recording findings that case for issuance of temporary injunction under Order 39 Rule 1 has not been made out, no direction could be issued

to parties to maintain the present position of the suit property, that too without recording any reason. A judicial order can be passed only after

recording reasons in support thereof. Since no reason is recorded and no ground is stated in issuing the impugned order, impugned order is

rendered without jurisdiction and is hereby set aside. The trial court will reconsider the matter after hearing the parties in the light of observations

made in this order and pass orders according to law.

This petition is, accordingly, disposed of along with all connected CMPs. Registry to, accordingly, inform the trial court.