Sanjeev Kumar, J
1. These proceedings by Harjinder Singh (plaintiff in the suit before the trial Court) are filed to assail the validity of the order dated 24.12.2016 passed
by the Principal District Judge, Samba in Civil Ist Appeal. The appellant has filed the Civil Ist Appeal against the impugned order and has alternatively
invoked the provisions of Section 104 of the Constitution of State of Jammu and Kashmir. Keeping in view the nature of the order passed by the trial
Court and the issues involved in these proceedings, I am of the view that it is a fit case where the proceedings filed by the appellant are required to be
treated as one filed under Section 104 of the Constitution of Jammu and Kashmir. This is so because an order passed by the appellate Court in terms
of Order 43 Rule 1(r) of Code of Civil Procedure (for short „the CPC‟) is not further appealable as is apparent from the provisions of Section 104
(2) of the CPC.
2. Harjinder Singh- appellant herein filed a civil suit for permanent prohibitory injunction against the respondents in the court of learned Sub
Judge/CJM, Samba (hereinafter referred to as the „trial Court‟).
For facility of reference, the appellant is hereinafter referred to as „the plaintiff‟ and the respondents as „the defendants‟. The trial Court vide its
interim order dated 11.01.2013 temporarily restrained the defendant No.1 and his agents or any other person claiming through him from interfering
with the possession of the plaintiff over the suit land in any manner whatsoever. This ex parte ad interim order was challenged by the defendant No.1
in an appeal before the Principal District Judge, Samba (hereinafter referred to as the appellate Court). The appellate Court vide its order dated
28.02.2013, accepted the appeal and remanded the case back to the trial Court for passing fresh order after filing of objections and written statement
by the defendant No.1. The appellate Court also directed that till the application for interim relief filed by the plaintiff is disposed of, both the parties
shall observe status quo on spot. This is how the matter was reconsidered by the trial Court and vide order dated 09.10.2014, the trial Court disposed
of the interim application and directed the parties to maintain status quo on spot till the disposal of the suit. Feeling aggrieved, the defendant No.1 filed
a Civil First Miscellaneous Appeal before the appellate Court and sought vacation of the interim order of status quo. The plaintiff also filed cross
objections and sought a positive restraint order against the defendant No.1. Both, the appeal as well as the cross objections were considered and
disposed of by the appellate Court vide its order dated 24.12.2016. As is evident from the reading of the order, the appellate Court with a view to
consider the rival contentions and effectively adjudicate the appeal and the cross objections, formulated two questions for determination;
(i) Whether in view of the dispute between the parties, the jurisdiction of the Civil Court is barred under Section 31 of the Evacuees (Administration of
Property) Act ?
(ii) Where the Court issues an injunction in excess of its jurisdiction, whether the Court has the power to vacate ad interim injunction by exercising its
inherent powers in the interest of justice and remedy the wrong?
3. There appears to be an extensive discussion on the issue No.1. the appellate Court after evaluating submissions of the learned counsel appearing
for the parties and taking note of plethora of case law on the subject answered the first question in the following manner:-
“As discussed above, suit involving question of entitlement of the parties to the land allotted falls within the ambit of powers of Custodian under
Evacuee‟s Property Act and jurisdiction of Civil Court is barred u/s 31 of the Act. The judgments referred to me and relied upon by learned counsel
for the appellant (defendant no.1) squarely apply to the facts and arguments propounded by learned counsel for the appellant defendant no.1) and
there is no reason not to oust the jurisdiction of this Court to entertain the present suit/appeals. As discussed above, the jurisdiction of Civil Court is
barred under section 31 of the Evacuees (Administration of Property) Act, hence, moot point 1st is decided in favour of the appellant (defendant no.1)
as against respondent no.1(plaintiff).â€
4. At this juncture, it is also pertinent to take note of the operative portion of the order of the appellate court which reads as under:
“Accordingly, impugned order dated 09.10.2014 is set aside and vacated. As discussed above, the suit involving question of entitlement of the
parties to the evacuee suit land allotted falls within the ambit of powers of Custodian under Evacuee‟s Property Act, and as the jurisdiction of the Civil
Court is barred under section 31 of the Act, Cross appeal/objections against judgment/order impugned dated 09.10.2014 rendered by the court of
learned Additional Munsiff Mobile Magistrate, Samba also stands disallowed, rejected and dismissed.â€
5. From reading of the order of the appellate Court impugned in these proceedings in its entirety, it clearly emerges that the appellate Court while
disposing of an appeal against the order of the trial Court passed under Order 39 Rule 1 of CPC disposing of the interim application has returned a
positive finding with regard to the maintainability of the suit. The order impugned, in essence, amounts to a decree of dismissal of the suit, which in my
considered view could not have been passed by the appellate Court hearing appeal under Order XLIII Rule 1(r) of CPC. It is not in dispute that while
considering the interim application in terms of Order 39 Rules 1 and 2 of CPC, the Court is required to consider three cordial principles:-
(i) Prima-facie case;
(ii) Irreparable loss‟ and
(iii) Balance of convenience.
6. The existence of prima facie case in favour of the plaintiff is sine qua non and one of the other two ingredients are also required to be established
before it becomes entitled to the issuance of the interim directions. While it is true that while considering as to whether or not the plaintiff has a prima-
facie case in his favour, the trial Court or the appellate Court, as the case may be, may broadly look to the maintainability of the suit only to make a
prima-facie view with regard to the entitlement of the plaintiff to the interim directions. But, in the garb of evaluating the existence of prima-face case,
the trial Court and for that matter, the appellate Court cannot return a positive and conclusive findings, which either uphold the maintainability of the
suit or entail its dismissal. The trial Court, however, is well within its power to reject the plaint at any stage in terms of Order 7 Rule (11) of CPC if
falls within the one or more contingencies enumerated in the aforesaid provision. If the case does not fall under Order 7 Rules (11) of CPC, the trial
Court can always frame the issue of maintainability to be tried as a preliminary issue. It is only after the specific preliminary issue with regard to the
maintainability is framed by the trial Court and the parties are given opportunity to address such issue can be decided. The trial Court while deciding
the application under Order 39 Rule 1 of CPC or the appellate Court while deciding the appeal under Order 43 Rule 1 (r) of CPC cannot conclusively
and final decide the maintainability of the suit.
7. For the aforesaid reasons, I am of the considered view that the appellate Court overstepped its jurisdiction when it returned a positive finding with
regard to the maintainability of the suit and virtually dismissed the suit of plaintiff.
8. In view of the foregoing discussion, the order passed by the appellate Court cannot be sustained and the same is, accordingly, set aside. The order
passed by the trial Court dated 09.10.2014 shall also stand set aside. However, instead of remanding the case back to the appellate Court, it would be
in the interest of justice to direct the trial Court to first frame the issues including preliminary issue with regard to the maintainability of the suit in the
light of the provisions of Section 31 of the Evacuees (Administration of Property) Act. The preliminary issue with regard to the maintainability of the
suit shall be decided by the trial Court first before proceeding further in the suit. With a view to avoid any delay on the decision of the preliminary
issue, I deem it proper to fix the schedule by providing that the parties either in person or through their counsel shall appear before the trial Court on
03.08.2019 on which date the trial Court shall frame the preliminary issue of maintainability of the suit, which the trial Court shall decide after hearing
both sides within a period of one month therefrom. It shall be open to the trial Court to fix shorter dates for the purpose. It is made clear that no party
shall be given adjournment for any reasons whatsoever. Till the issue of maintainability of the suit is decided by the trial Court, the parties shall
maintain status quo with regard to the suit property. Further orders in the interim application of the plaintiff shall be passed by the trial Court, if the
need be, after the disposal of the preliminary issue of maintainability of the suit, purely on its merits. Ordered accordingly.
9. Disposed of as above along with connected CM(s).
