Rashida Muzaffar v. Mohammad Abdullah Rather

ORDER (25.02.2026)

¶01The institution of this petition took place on

11.05.2016 when supervisory jurisdiction of this High Court was reserved and preserved under section 104 of the then Constitution of Jammu & Kashmir and, thus, invoking said jurisdiction, the petitioner-Muzaffar Ali Gazi (now deceased) and represented by his legal heirs substituted by reference to CM No. 8202/2024 in terms of an order dated 07.07.2025, sought examination of an order dated 07.06.2014 passed by the court of 3rd Additional District Judge, Srinagar in a civil suit on file No. 5/Numberi of 26.05.2011 whereby the Preliminary Issue No. 5 to the effect whether suit is not maintainable in present form, Issue No. 6 – whether the suit is also hit by Order 2 Rule 2 of CPC, Issue No. 7 – whether the Sr. No. 11 Regular List

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suit has not been properly valued and lacks due to proper court fees and Issue No. 9 – whether suit of the plaintiff is also liable to be dismissed for non-joinder of necessary party, all came to be decided.

¶02The court of learned 3rd Additional District Judge, Srinagar held all the aforesaid issues in favour of the respondent and, thus, putting up the suit on evidence stage.

¶03Said Muzaffar Ali Gazi was sole defendant in suit preferred by the respondent herein.

¶04Upon institution of this petition, there was no interim direction with respect to the trial of the suit but record of the suit was sent for and perhaps that has held up the onward trial of the civil suit.

¶05This Court disposes of this petition by holding that the aforesaid issues surely were not qualifying to be preliminary issues to be adjudicated pre-evidence stage at first instance in the suit as the same are of mixed element of law and fact and, thus, the trial court could have afforded to take up the adjudication of aforesaid issues along with the other issues as framed in terms of an order dated 26.09.2009.

¶06Infact, the original institution of suit is of 2008 before being transferred to the court of 3rd Additional District

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Judge, Srinagar to be taken on file No. 5/Numberi of 2011 and that means 2008 born civil suit is still at doorstep of its adjudication.

¶07A perusal of order dated 26.09.2009 would show that while framing twelve (12) issues, the court below did not identify as to which of twelve (12) issues are the legal issues and, therefore, ought to have acted with reserve and taken up the adjudication of all the issues upon reading of evidence from both sides and then dispose of suit accordingly.

¶08Therefore, order dated 07.06.2014 is hereby set aside without prejudice to the right and position of the parties to the suit at the final hearing of the suit when aforesaid issues be taken up adjudication.

¶09The suit file record be returned with a direction to the court of 3rd Additional District Judge, Srinagar to revive the suit proceedings by issuing fresh summons to both sides for appearance for resumption of the trial from the stage onward framing of issues.

¶10Disposed of.

(RAHUL BHARTI) JUDGE SRINAGAR

25.02.2026

Opinder

Whether the order is speaking :

Whether the order is reportable :

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No. 222/2022 Rashida Muzaffar and Ors. ….. Petitioners Through: Mr. Manzoor Ahmad Dar, Advocate Vs Mohammad Abdullah Rather .…. Respondent Through: Mr. G. A. Lone, Sr. Advocate with Mr. Mujeeb Andrabi, Advocate CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE