Mst. Mugli and Ors v. Ghulam Ahmad Ahanger and Ors. (Revenue Department)

ORDER

19.09.2025

¶1The respondents No. 1 to 5 herein, as plaintiffs, came to commence a civil suit for partition, permanent and mandatory injunction and also for a declaration sought with respect to the estate of one Mohammad Sultan Ahanger as is forthcoming from the plaint accompanying the present writ petition.

¶2In the suit, the respondents No. 1 to 5, as plaintiffs, came to name 17 defendants at first instance.

¶3The institution of the suit is of 16.06.2009, when in response to a temporary injunction application under Order 39 Rule 1 & 2 of the Jammu

& Kashmir Code of Civil Procedure, Svt. 1977, the trial court of learned Principal District Judge, Budgam came to direct originally named defendants not to alienate the suit property in question and also not to raise any construction thereupon.

¶4Said interim ex-parte direction in terms of order dated 16.06.2009 was subject to objections from the defendants' end.

¶5This order dated 16.06.2009 came to be made absolute in terms of an order dated 30.09.2011.

¶6It is in the year 2016 that the petitioner No. 1 herein-Mst. Mugli, daughter of deceased son of said estate holder Mohammad Sultan Ahanger, had come forward with an application seeking her impleadment in the suit as one of the defendants, reckoning herself to be a necessary party.

¶7Said application was filed on 26.12.2016 which came to be allowed by virtue of an order dated

05.07.2017 by the court of learned Principal District Judge, Budgam.

¶8By reference to the application of the petitioner No. 1 for impleadment, the court of learned Principal District Judge, Budgam not only impleaded the

petitioner No. 1 but also some other necessary parties who otherwise were left out of the suit, and those parties came to be referred to in the order dated

05.07.2017.

¶9Because of order dated 05.07.2017, the array of the defendants from the original number of 17 inflated.

¶10As borne out from the record of this case, perhaps the respondents No. 1 to 5, as the plaintiffs, have not carried out due compliance of the order dated

05.07.2017 passed by the court of learned Principal District Judge, Budgam whereby the respondents No. 1 to 5 as plaintiffs have been commanded to come up with an amended plaint as per the mandate of order dated 05.07.2017. This position is reflected from the order dated 23.02.2019 of the court of learned Principal District Judge, Budgam.

¶11Be that as it may, the petitioner No. 1, as an impleaded defendant in the suit, joined by the petitioners No. 2 to 4 who otherwise per se do not figure in the suit as a party defendants, preferred an application for seeking permission of the trial court to undertake construction of a cowshed and a single-story residential house.

¶12This application was filed on 11.03.2023 and came to suffer rejection in terms of an order dated

07.08.2023 which now has become the subject matter of challenge in the present petition which is a civil miscellaneous appeal purportedly by reference to Order 43 Rule 1(R) of the Jammu & Kashmir Code of Civil Procedure, Svt. 1977.

¶13A perusal of the impugned order would show that the court of learned Additional District Judge (Fast Track), Budgam, before which suit later came to have been transferred, has acted on the premise that since the petitioner No. 1 as an applicant and as a party to the suit is in the purported status of co-sharer of the said property, as such, the petitioner No. 1 cannot be exempted from the effects of the injunctory order dated 30.09.2011.

¶14If the premise relied upon by the learned Additional District Judge (Fast Track), Budgam is to be taken as correct, then in any given civil suit where a temporary injunction order is passed later on followed by impleadment of a necessary party as a defendant, it would then mean that said newly impleaded defendant would have to bear the burden of temporary injunction passed under Order 39 Rule 1 &

2 of the Jammu and Kashmir Code of Civil Procedure, Svt. 1977 (now Code of Civil Procedure, 1908) without having had the opportunity of putting up his/her case in response to the temporary injunction application. This cannot be the spirit of the procedural law, that too when it comes to matters of adjudication of civil suits.

¶15In the light of the aforesaid, this Court finds the reasoning of the learned Additional District Judge (Fast Track), Budgam seriously flawed which warrants to be set aside and consequently the order dated

07.08.2023 is set aside with a consequent direction to the learned Additional District Judge, Budgam to first check whether the petitioner No. 1 as a defendant impleaded in the suit has filed her written statement or not and has also filed objections to the temporary injunction application or not.

¶16If the petitioner No. 1 has filed her written statement in the civil suit, whether jointly or individually, then the court of learned Additional District Judge Fast Track), Budgam shall take up the application of the petitioner No. 1 for adjudication on merits by reckoning the application of the petitioner

No. 1 as a one under Order 39 Rule 4 of the Jammu and Kashmir Code of Civil Procedure, Svt. 1977.

¶17It is further made clear that in case if co-petitioners No. 2 to 4 are also the party defendants in the civil suit, they shall also be reckoned as co-applicants with the petitioner No. 1 in the context of the application to be disposed of by the court of learned Additional District Judge (Fast Track), Budgam within a period of two months from the date a copy of this order is served upon the court.

¶18Disposed of.

¶19A copy of this order be served to the court of learned Additional District Judge (Fast Track), Budgam.

(RAHUL BHARTI)

JUDGE

SRINAGAR:

19.09.2025 "Mir Arif"

Serial No.6 REGULAR CAUSE LIST IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR FAO 6/2024 CM(945/2024) Mst. Mugli And Ors. …Petitioner(s) Through: Mr. M.M. Dar, Advocate with Ms. Saiqa Dawood, Advocate Vs. Ghulam Ahmad Ahanger and Ors. ...Respondent(s) Through: Mr. Syed Manzoor, Advocate CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE