1 S. No. 24 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) 103/2023 CM(3005/2023) CM(7331/2023) HAKEEM BASHIR AND ORS …Petitioner/Appellant(s) Through: Mr. Azhar ul Amin, Advocate with Mr. Hanan Hussain, Advocate. Vs. HAKEEM ASHIQ HUSSAIN AND ORS ...Respondent(s) Through: Mr. Atir Javid Kawoosa, Advocate. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 10.09.2025 1. The instant petition has been filed by the petitioners herein by invoking Supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution for setting aside order dated 07.04.2023 read with order dated 28.02.2022 passed by the 4th Additional District Judge Srinagar (for short “the appellate court”) in case titled as “Hakeem Bashir and Ors. Vs. Begum Bano”. 2. Facts emerging from the record would reveal that the respondent 1 herein filed a suit for partition before the court of Judge Small Causes, Srinagar (for short “the trial court”) on 29.04.2021 stating therein that she the plaintiff/respondent 1 herein succeeded her father Hakeem Ghulam Rasool along with three other sisters namely Zohra Begum, Zainab Begum and Fatima Begum and became entitled to the chunk of land left behind by their said father, which consisted of land measuring 19 kanals and 12 marlas situated at Nigeen and Zonimar Srinagar, respectively which land, however, was not partitioned despite repeated request made by her in this regard to the other co-sharers who were stated to be in possession of the same. 3. Accompanying the suit supra the plaintiff/respondent 1 herein have had also filed an application for interim relief wherein an interim order have had been granted initially by the trial court on 29.04.2021, however, subsequently in terms of order dated 11.11.2021 the said interim order came to be vacated upon disposal of the said application for interim relief while 2 taking into consideration an application filed by defendants 7, 14 to 16 in the suit under Order 39 rule 4 CPC. 4. Aggrieved of the said dismissal of application for interim relief, plaintiff/respondent 1 herein preferred a miscellaneous appeal before the appellate court which appeal came to be allowed after contested by the respondents therein the said appeal, vide order dated 28.02.2022 by allowing the same while directing the parties to maintain status- quo with regard to the suit property till final disposal of the suit. 5. Dissatisfied with the said order dated 28.02.2022, a time barred review petition came to be filed by the respondents before the appellate court, on 07.04.2023 seeking review of the said order of the appellate court, which review, however, was dismissed, consequent to the dismissal of the application of condonation of delay in terms of order dated 07.04.2023. 6. Aggrieved of the said orders of the appellate court both passed in the main appeal on 28.02.2022 as also in the time barred review petition on 07.04.2023, the petitioners herein have maintained the instant petition and challenged the said orders on multiple grounds urged in the petition. Heard counsel for the parties and perused the record. 7. Mr. Azhar-ul-Amin, appearing counsel for the petitioners herein while making his submissions, would vehemently contend that the appellate court wrongly placed reliance on a factually incorrect fact that the plaintiff/ respondent 1 herein though was impleaded as a party defendant No. 16 in the earlier suit filed by one of her sisters namely Mst. Fatima Begum for partition, injunction and mean profits qua the land in question had been deleted from the array of defendants in the said suit which suit had been subsequently compromised and a compromise decree have had been passed on 27.03.1991. 8. According to Mr. Amin, the plaintiff/respondent 1 herein, was never deleted as party defendant in the said suit and, in fact, have had been set ex- parte along with defendants 6 and 7 therein the said suit on account of non appearance before the court trying the said suit and had in fact knowledge of the said suit yet, suppressed and concealed the said fact which suppression 3 and concealment of the said material fact disentitled plaintiff/respondent 1 to any interim relief much less one granted by the appellate court. 9. Having regard to the said submission of Mr. Amin, record of the said suit, summoned by this Court in terms of the previous order was examined and it was found that the plaintiff /respondent 1 herein indisputably had been impleaded as party defendant 16 therein the said suit filed by her sister Ms. Fatima and had been set ex-parte on 31.07.1991 alongwith defendants 6 and 7 therein the said suit by the court trying the said suit. 10. A closer examination of the record of the said suit also reveals that the plaintiff/respondent 1 herein was never deleted from the array of defendants in the said suit, but in fact had been set ex-parte on 31.07.1991 after said court had recorded that the defendant 16 despite service has chosen not to appear. 11. Record bears testimony to the fact that not only the appellate court herein, but also the trial court herein have wrongly recorded that the plaintiff respondent 1 herein had been deleted from the array of defendants in the said suit, overlooking the fact that, in fact, the plaintiff/respondent 1 herein had been in fact set ex-parte therein the said suit on 31.07.1991. 12. In view of the aforesaid position obtaining in the matter, it is evident that the matter has not received appropriate consideration by both the courts below thus, necessitates reconsideration of the matter of interim application afresh by trial court. Accordingly, orders passed by the courts below dated 11.11.2021, 28.02.2022 and 07.04.2023 are set-aside with a direction to the trial court to re-visit and reconsider the application for interim relief accompanying the suit titled as “Begum Bano Vs. Hakeem Bashir and Ors” and pass fresh orders thereof in accordance with law. 13. Disposed of. (JAVED IQBAL WANI) JUDGE SRINAGAR 10.09.2025 Ishaq Whether the order is speaking Yes/No Whether the order is reportable Yes/No