CR No. 11/2025 1 of 8 Serial No. 7 Regular Cause List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM 1579/2025 In CR 11/2025 Azhar Hussain Bhat S/O: Ghulam Rasool Bhat R/O: Doodhganga Colony, Natipora, Srinagar … Petitioner/Appellant(s) Through: Mr. Hakim Suhail Ishtiaq, Advocate Vs. Mohammad Shafi Narchoor S/O: Habib Ullah Narchoor R/O: Janglat Mandi, Anantnag, Kashmir ...Respondent(s) Through: Mr. Sajad Ahmad Sofi, Advocate CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER 24.03.2025 ORAL:- 1. The instant composite petition has been filed by the petitioner herein under and in terms of Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India. 2. The facts giving rise to the filing of the instant petition reveal that a suit for specific performance of contract came to be filed by the plaintiff/respondent herein against the defendant/petitioner herein before the court of 4th Additional District Judge, Srinagar (for short hereinafter referred as “the trial court”) on the premise that the defendant/petitioner herein executed an agreement to sell, dated 16.11.2024, with the plaintiff/respondent herein in respect of an immovable property CR No. 11/2025 2 of 8 compromising of 1 kanal and 5 marlas of land, including a 40% share in a building existing thereon the said land, covered under survey Nos. 501 min, 502 min and Khewat Nos. 959, 960, 961, 962 and 963 with Khata No. 248 situated at Mouza estate Nursing Grah Magarmal Bagh, Srinagar (for short “ the suit property”). The plaintiff/respondent herein in the said suit besides seeking of the aforesaid decree for specific performance, sought a decree for damages against the defendant/petitioner herein to the tune of Rs. 3.00 crores, as well as a decree for permanent prohibitory and mandatory injunction for restraining the defendant/petitioner herein from creating any third-party interest in the suit property or else to raise any construction thereon. 3. The defendant/petitioner herein has filed written statement to the suit, stating therein that on 20.11.2024, the plaintiff/respondent herein entered his office and forcibly got blank papers signed, as a consequence whereof, the defendant/petitioner herein filed a complaint on 21.11.2024 in this regard with the concerned police station, while stating further that he has already filed a suit for cancellation of the agreement to sell against the plaintiff/respondent herein and his son, having further asserted in the written statement that he, the defendant/petitioner herein, is not the owner of the suit property. 4. 4. On 04.03.2025, the trial court got the preliminary statement of the parties recorded and on the very same date upon the submission of the counsel for the plaintiff/respondent herein made before the trial court that, since the defendant/petitioner herein does not claim to be owner of the suit CR No. 11/2025 3 of 8 property, but persons namely Davinder Kumar and Mohan Krish Koul sons of Amarnath Koul and Roop Krishan Koul son of Diya Koul all residents of Magarmal Bagh, Srinagar, are the actual owners of the suit property need to be summoned, the trial court issued summons to the said persons on 04.03.2025 itself calling upon the said persons to show cause as to why they be not arrayed as party defendants in the suit. 5. On 10.03.2025, upon noticing the absence of the above named persons summoned by it, the trial court directed issuance of bailable warrants against one of the persons namely Davinder Kumar Koul amongst those claimed to be the real owners of the suit property. 6. On 17.03.2025, i.e., the next date of hearing, the trial court yet again after noticing non appearance of the above named person summoned, directed issuance of non-bailable warrants for securing the presence of the above named Davinder Kumar Koul. 7. The defendant/petitioner herein has maintained the instant petition, inter alia, on the premise that the trial court misdirected itself in conducting the proceedings in the suit while issuing notices to persons who were stated to be the actual owners of the property and also committed gross illegality and irregularity thereof by initially issuing bailable warrants and subsequently non-bailable warrants for securing the presence of one of the actual owners of the suit property and in the process the trial court delayed the trial of the suit and consequently caused prejudice to the rights and interests of the defendant/petitioner herein inasmuch as failure of justice. CR No. 11/2025 4 of 8 Heard learned counsel for the petitioner and also learned counsel for the caveator and perused the record. 8. It is significant to mention here that when the instant matter came up for consideration on the previous date of hearing before this Court, and the counsel for the petitioner was heard partly, the record of the trial court was called for and same is available for perusal. At the very outset a bare perusal of the record of the trial court would manifestly show that on 12.03.2025, the above named Davinder Kumar Koul (whose presence has been ordered by the issuance of bailable/non-bailable warrants) has filed a power of attorney before the trial court through his counsel, namely Mr. Anwar Shaheen and Mr. Waseem Reshi, and the said power of attorney has even been marked by the trial court on the very said date. Thus, in presence of the said factual position obtaining in the matter, there was no reason or occasion for the trial court to issue non-bailable warrants for securing presence of the said person. 9. Learned counsel for the petitioner, while making his submissions in line and tune with the case set up in the instant petition, pointed out that the persons summoned by the trial court being the real owners of the suit property, had entered their appearance through a counsel before the trial court and also filed a power of attorney thereof prior to the passing of the impugned order dated 17.03.2025, yet the trial court failed to take cognizance of the same and instead proceeded to issue non-bailable warrants for securing the presence of one of the actual owners of the suit property. CR No. 11/2025 5 of 8 10. Be that as it may, record also tends to show that it had been brought into the notice of the trial court on 04.03.2025 by the counsel for the plaintiff/respondent herein that the suit property, according to the statement made by the defendant/petitioner herein, belongs to someone else and not to him, and that the said actual owners of the suit property need to be impleaded as party defendants in the suit, the trial court, seemingly having taken cognizance of the said fact in order 04.03.2025, recorded a prima facie satisfaction that the said actual owners need to be impleaded as party defendants in the suit and accordingly directed issuance of summons to them to show cause as to why they be not impleaded as party defendants in the suit. 11. Before proceeding further in the matter, it would be pertinent to mention here that the Code of Civil Procedure provides a specific provision for striking out or adding parties under Order 1 Rule 10(2) CPC, Which contemplates that a court can strike out or add parties in a lis either suo moto or upon an application by either of the parties to the lis. The said provisions of Order 1 Rule 10(2) CPC are incorporated in the code with the aim and object to ensure the conclusive and effective determination of the issues involved in a case. It is also pertinent to mention here that law is settled that striking out or adding of parties in a lis is a matter of procedure and the provision thereof does neither create any right in favour of the parties impleaded nor curtails the same or interferes with the rights of the parties which are already in existence. CR No. 11/2025 6 of 8 It is also a settled position of law that the provisions of Order 1 Rule 10(2) CPC have been held to be the matter of judicial discretion to be exercised by a court keeping in mind all the facts and circumstances of a particular case. The said view has been expressed by the Apex Court in a case titled as “Razia Begum Vs. Sahebzadi Anwar Begum” reported in AIR 1958 SC Page 886. Further the Apex Court in case titled as “Anil Kumar Singh Vs. Shivnath Mishra and Gadasa Guru” reported in 1995 Volume (3) SCC 147, while dealing with the provisions of Order 1 Rule 10 (2) CPC has held that the primary object of enacting of said provision is to bring before the court, at one and the same time, all the persons interested in the dispute so that all the controversies in the suit may be finally determined once and for all in presence of all the parties without delay. Thus, what emanates from the above position of law is that the provisions of Order 1 Rule 10(2) CPC confer wide discretion on the court which, however, has to be exercised judiciously and on sound judicial principles. 12. Keeping in mind the aforesaid position of law and reverting back to the case in hand, the trial court on 04.03.2025 once was convinced and satisfied that presence of the persons who are stated to be actual owners to the suit property and are either necessary or proper parties to the suit, court ought to have impleaded the said real actual owners of the suit property as party defendants in the suit suo moto without issuing any prior notice to them for such impleadment and although issuance of such prior notice before impleadment may be a mere irregularity committed by the trial CR No. 11/2025 7 of 8 court in the matter, yet the proceedings thereafter conducted by the trial court for securing the presence of the said actual real owners of the suit property cannot by any stretch of imagination said to a mere irregularity but a gross illegality not countenanced by law, in that, the trial court is invested with no such power while directing impleadment of a person as a party to the lis under and in terms of provisions of Order 1 Rule 10(2) CPC, thus warranting exercise of supervisory jurisdiction vested in this Court under Article 227 of the Constitution of India. 13. 13. Viewed thus, what has been observed, considered and analyzed hereinabove, the impugned orders dated 10.03.2025 and 17.03.2025 in so far the same relate to the summoning of the actual real owners of the suit property through bailable and non-bailable warrants respectively are quashed. However, having regard to the nature of controversy involved in the suit, inasmuch as the respective pleadings of the parties filed before the court below coupled with the preliminary statements made by the parties before the trial court, it is deemed to appropriate to implead the said actual real owners of the suit property as party defendants to the suit in order to ensure the speedy disposal of the case before the trial court. Ordered accordingly. The trial court, thus, should take into account the appearance of the counsel representing the newly added defendant- Davinder Kumar Koul and, take further steps for summoning the rest of the newly added defendants in the suit before proceeding further in the matter. 14. Disposed of. CR No. 11/2025 8 of 8 15. The record of the trial court is directed to be remitted back forthwith. 16. The parties shall appear before the trial court on 07.04.2025. 17. With the appearance of Mr. Sajad Ahmad Sofi, caveat stands discharged. (JAVED IQBAL WANI) JUDGE SRINAGAR: 24.03.2025 “Mir Arif” Whether the order is reportable? Yes/No Whether the order is speaking? Yes/No