80 Suppl HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No. 178/2025 CM No. 2700/2025 Caveat 1056/2025 Abdul Rashid Lone ….. Petitioner (s) Through: Mr. Rizwan ul Zaman, Adv. V/s Muzaffar Ahmad Lone and anr. ….. Respondent(s) Through: Mr. S A Makroo, Sr. Adv. with Mr. Rahil Noor, Adv. Coram: Hon’ble Mr. Justice Sanjay Dhar, Judge ORDER 06.05.2025 1. The petitioner has challenged order dated 19.04.2025 passed by the learned Sub Judge, Bijbehara whereby SHO Police Station, Bijbehara has been directed to implement the order dated 12.08.2021 against the petitioner/plaintiff and further he has been restrained from interfering in construction process being undertaken by respondent No.1/Muzaffar Ahmad Lone P a g e | 2 CM(M) No. 178/2025 CM No. 2700/2025 Caveat 1056/2025 on the suit land falling under Survey No. 1877/1078 situated at Jablipora Pati, Pazalpora, Bijbehara 2. Issue notice to the respondents. 3. Mr. Rahil Noor, Advocate enters appearance and accepts notice on behalf of the respondents. Caveat is accordingly discharged. 4. Heard and considered. 5. It appears that the plaintiff/petitioner has filed a suit for permanent prohibitory injunction against the respondents/defendants restraining them from raising any kind of construction or effecting encroachment over the land measuring 18 marlas falling under Survey No. 1877/1078 situated at Jablipora Pati, Pazalpora, Bijbehara. It also appears that an interim injunction came to be passed by the learned trial court after hearing the parties in terms of the order dated 28.08.2021 whereby defendant No. 2/Mohammad Ramzan Lone was allowed to raise construction of his house on the already constructed plinth in the suit property subject to the filing of an undertaking to the effect that he will demolish or P a g e | 3 CM(M) No. 178/2025 CM No. 2700/2025 Caveat 1056/2025 dismantle the construction if the plaintiff/petitioner succeeds in the suit. It further appears that the aforesaid order was assailed by the plaintiff/petitioner before the Appellate Court but without any success. 6. It seems that when the defendant/ Muzaffar Ahmad Lone started raising construction on spot, the petitioner/plaintiff objected to it, which prompted the said defendant to file an application under Section 151 of Code of Civil Procedure before the learned trial court seeking implementation of the order dated 28.08.2021. The learned trial court vide impugned order dated 19.04.2025, allowed the said application. 7. Learned counsel for the petitioner has submitted that by virtue of the order dated 28.08.2021, it was defendant No.2/Mohamad Ramzan Lone who was permitted to raise construction on spot but instead of line the construction is being raised by defendant No. 1/Muzaffar Ahmad Lone. Therefore, the impugned order passed by the learned trial court is contrary to the order dated 28.08.2021 passed by the trial court. P a g e | 4 CM(M) No. 178/2025 CM No. 2700/2025 Caveat 1056/2025 8. Learned Senior counsel appearing on behalf of the respondents has submitted that in fact there is a typographical error in order dated 28.08.2021 as from the pleadings of the parties, it is clear that it was defendant No. 1/Muzaffar Ahmad Lone who was intending to raise construction on spot but inadvertently, the learned trial court has mentioned defendant No. 2 in the order. He has further submitted that an application for correction/modification of the order to this extent has already been moved by defendant No. 1/ Muzaffar Ahmad Lone before the learned trial court which is still pending. He has further submitted that even the petitioner/plaintiff has filed an application seeking recall of the order dated 19.04.2025 before the learned trial court. 9. Be that as it may, as on date, as per order dated 28.08.2021, the permission was granted to defendant No. 2 Mohammad Ramzan Lone to raise construction on spot. Therefore, unless order dated 28.08.2021 is modified/corrected by the learned trial court, it is not open to defendant No. 1/Mohammad Ramzan Lone to raise construction on spot. The learned trial P a g e | 5 CM(M) No. 178/2025 CM No. 2700/2025 Caveat 1056/2025 court, in these circumstances, was not within its jurisdiction to grant police assistance to defendant No. 1/Muzaffar Ahmad Lone for raising construction on spot because the said defendant was not allowed to raise the construction. 10. Since defendant No. 1/Muzaffar Ahamd Lone has already stated to have moved an application for correction/modification of the order dated 28.08.2021, therefore, instead of setting aside order dated 19.04.2025, it will be appropriate to keep the said order in abeyance till the modification/correction application is decided by the learned trial court. 11. Accordingly, the petition is disposed of with a direction to the learned trial court to decide the application for modification/correction of order dated 28.08.2021 within a period of 15 days from the date a copy of this order is made available to the said court. Till such time, the modification/correction application is decided by the learned trial court, order dated 19.04.2025 shall remain in abeyance. Recall or otherwise of the impugned order shall await decision P a g e | 6 CM(M) No. 178/2025 CM No. 2700/2025 Caveat 1056/2025 of the learned trial court in the application for modification/correction is decided by the learned trial court. 12. Disposed of . 13. Copy of this order be sent to learned trial court. (Sanjay Dhar) Judge SRINAGAR 06.05.2025 Aasif