IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … CM(M) No. 316/2025 Reserved on: 17.09.2025 Pronounced on: 24.09.2025 Azhar Hussain Bhat , Aged 46 years S/o Ghulam Rasool Bhat, R/o Doodhganga Colony, Natipora, Srinagar ……...Petitioner(s) Through: Mr. Hakim Suhail Ishtiyaq, Advocate Versus 1. Mohammad Shafi Narchoor S/o Habib Ullah Narchoor R/o Janglat Mandi, Anantnag, Kashmir 2. Davinder Kumar Koul S/o Amarnath Koul, Aged 72 Years R/o Magarmal Bagh, Srinagar. 3. Mohan Krishan Koul S/o Amarnath Koul R/o Magarmal Bagh, Srinagar 4. Roup Krishan Koul S/o Diya Koul R/o Magarmal Bagh, Srinagar ……Respondent(s) Through: Mr. Jahangir Iqbal Ganai, Sr. Advocate with Mr. Suhail Mehraj, Advocate for R1. CORAM: HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT 1. By this petition, petitioner herein, has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, thereby challenging the interim order dated 11.12.2024, passed by the Court of 4th Additional District Judge, Srinagar in a suit titled as “Mohammed Shafi Narchoor vs Azhar Hussain Bhat,” whereby the petitioner has been restrained from raising any construction over the property, which is the subject matter of the suit and by a subsequent order dated 30.06.2025, passed Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document by the said Court for its implementation through SHO, Police Station, Shergari. Petitioner has also sought consolidation of the suit filed by respondent No. 1, against the petitioner and the proforma respondents and the other suit, filed by petitioner against the respondent No. 1 and his son, pending adjudication before the Court of Civil Judge, Srinagar. Factual Matrix 2. A suit for specific performance of agreement to sell came to be filed by the respondent No. 1 against the petitioner on 10.12.2024, before the learned trial Court, seeking the following reliefs:- “a. That a decree of specific performance of agreement to sell dated 16.11.2024, be passed in favour of the plaintiff and against the defendant thereby directing the defendant to execute formal sale deed for transfer of land measuring 01 Kanals and 05 Marlas under Survey No. 501 min, 502 min, Khewat No. 959, 960, 961, 962, 963, Khata No. 248 situated at Mouza Estate Narsing Garh, Magarmal Bagh, Srinagar along with 40% share in building from bottom to top in favour of the plaintiff in accordance with agreement to sell dated 16.11.2024. b. That the decree of damages to the tune of Rs. 3.00 Crores be passed in favour of plaintiff and against the defendant and defendant be directed to pay Rs. 3.00 Crores as damages to the plaintiff for loss caused to the business and business reputation and individual reputation of plaintiff on the hands of defendant. c. That a decree of permanent prohibitory injunction be passed in favour of the plaintiff and against the defendant restraining the defendant from disposing of or creating third party interest in the suit property to any person other than the plaintiff. d. That the decree of mandatory induction be passed in favour of the plaintiff and against the defendant restraining the defendant from raising any constructional activities in the suit property till execution of formal sale deed with the plaintiff. e. Any other relief which this Hon’ble Court deems just and proper in favour of the plaintiff and against the defendants. 3. The learned Court of 4th Additional District Judge, Srinagar passed the order dated 11.12.2024, as under:- “3. From the material made available on record, in the considered opinion of the Court at this stage, the applicant has succeeded in making out a prima facie case and balance of convenience tilts in Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document his favour. The applicant has also made out a case for dispensation of notice as required under Order 39 rule 3 of CPC the notice is accordingly dispensed with due to the urgency involved. 4. In view of the facts and circumstances, till next date of hearing, the defendants/non-applicants are restrained from raising any construction on spot and also restrained from creating any third- party interest in the suit property. The other side is at liberty to file objections or to apply for modification/cancellation of this order even by or before next date of hearing. 5. Office to issue a copy of this order to the applicant so as to facilitate the applicant to serve upon the non-applicants, the copy of this order, plaint, along with all annexures through registered post and he shall submit a service affidavit showing service/compliance of the court order within five days from today. Put up on 24.12.2024.” 4. Respondent No.1 sought implementation of the order dated 11.12.2024 and 17.12.2024, passed by the Court of 4th Additional District Judge, Srinagar, through SHO police station, Shergari, Srinagar, on the ground that the petitioner herein deliberately, intentionally and in utter violation of the orders supra had continued to raise construction activities of the building. The Court passed the order dated 30.06.2025. Paragraphs 3 and 4 of the said order being relevant are taken note of:- “3. Perusal of the record reveals that this Court order dated 11.12.2024, whereby defendants/non-applicants are restrained from raising any construction on spot and also restrained from creating any third party interests in the suit property and as such defendant needs to obey the order. Therefore, to maintain sanctity of Court and to preserve the suit property, the order is required to be implemented in its letter and spirit. 4. Keeping in view the above stated facts and circumstances, issue notice to other side for filing of objections. In the meanwhile the SHO Police Station Sheergari is directed to ensure that the order dated 11.12.2024, is not violated on spot and submit the compliance report on or before next date of hearing. However, this order shall not be construed to dispossess a person in possession of the suit property.” 5. This Court after hearing the petitioner passed order dated 06.08.2024, at the motion hearing stage. Paragraph 11 of the said order being relevant is taken note of:- Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document “11. It is being lastly pleaded that though the petitioner has filed written statement to the suit, yet the trial court has failed to follow the mandate of Order 39, Rule 1 CPC, and though proforma respondents as well have challenged the impugned order before this Court in FAO No. 28/2025, yet the order dated 30.06.2025 has been passed by the trial court exercising power under Section 151 CPC, thus, rendering the same amenable to the Supervisory jurisdiction of this Court, as well as for consolidating of the aforesaid suits while exercising the said jurisdiction. Heard counsel for the petitioner and perused the record. A case for indulgence is made out. Issue notice in the main petition as well as interim application returnable within three weeks upon steps within one week. List on 17.09.2025. In the meanwhile, subject to objections from the other side and till next date of hearing, the petitioner is permitted to carry out and complete the construction activity in question pursuant to building permission dated 13.08.2022 strictly in accordance therewith, however, the said construction shall remain subject to outcome of instant petition.” 6. Upon notice, respondent No. 1 has appeared through learned senior counsel who has raised a preliminary objection with respect to the maintainability of this petition under Article 227 of the constitution of India. He has stated that impugned order is passed under Order 39 rule 1 and 2 of CPC, which is appealable as is provided in Order 43 rule 1(r) of CPC, as such it is no more res integra that invocation of supervisory jurisdiction under Article 227 of the Constitution of India, against the same order of injunction, is not justified. Learned counsel for the petitioner has referred to and relied upon the Judgment delivered by the Hon’ble Apex Court in case titled as Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. vs Tuticorin Educational Society and others (2019) 9 SCC 538 in support of his claim. 7. Heard learned counsel for the parties and perused the material on record, considered the written submissions filed by Mr. Hakim Suhail Ishtiyaq, learned counsel for the petitioner. It would be advantageous to reproduce paragraphs 4 and 5, being relevant, of the said written submissions herein:- Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document “ 4. That though the remedy of appeal was available to the petitioner under Order 43 Rule 1 (r) in terms of the judgment supra, however, the second relief which is being sought in the present petition, i.e. consolidation of suits, could not have been sought in the appeal, as appeal being continuation of proceedings before the Ld. Trial Court, and this Hon’ble Court could not have embarked upon proceedings pending in two different courts, viz, suit filed by the petitioner pending adjudication before the Hon’ble Court of City Judge, Srinagar and application seeking consolidation of suits pending adjudication before the Hon’ble Court of Principal District Judge, Srinagar. 5. That, had the petitioner filed an appeal before this Hon’ble Court, yet for the second relief, he had to file the petition under Article 227 of the Constitution of India before this Hon’ble Court which would have resulted in multiplicity of litigation. Further, both appeal and petition under Article 227 had to be filed before this Hon’ble Court only. Had the impugned order been passed by any Hon’ble Court of Munsiff, in that situation, appeal ought to have been filed before the Hon’ble Court of District Judge having jurisdiction and petition under Article 227 before this Hon’ble Court. However, in the present case, as such, nomenclature of the petition/appeal would not have a serious effect as this Hon’ble Court in case deems it proper may treat an appeal as petition under Article 227 and vice versa.” 8. In this petition, petitioner has admitted at Para No. 2 of this petition, that the impugned order dated 11.12.2024 is appealable. It is also stated that the impugned orders dated 11.12.2024 and 30.06.2025, have already been assailed by respondent No.2, by virtue of an appeal bearing FAO No. 28/2025, which is pending adjudication before this Court. The petitioner figured as contested respondent No. 2 in the said FAO, but later on was arrayed as proforma respondent No. 2. In FAO No. 28/2025, filed by the respondent No. 2, the original record has been summoned by this Court in terms of order dated 04.08.2025, as such, the proceedings could not be initiated therein. In terms of Order XLIII Rule 1 (r) of the Code of Civil Procedure, 1908, the remedy of appeal is provided for assailing the order impugned. It would be advantageous to take note of the relevant provision of law herein:- “Order XLIII Rule 1 (r) 1. Appeals from orders.—An appeal shall lie from the following orders under the provisions of Section 104, namely:- (r) an order under Rule 1, Rule 2 [Rule 20A], Rule 4 or Rule 10 of Order XXXIX.” Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 9. The petitioner had a remedy of filing an appeal against the impugned orders under Order 43 Rule 1 (r) of the Code of Civil Procedure, 1908, but he has chosen to rush to this Court, thereby invoking the jurisdiction under Article 227 of the Constitution of India, it is not maintainable as has been held in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. vs Tuticorin Educational Society and others (2019) 9 SCC 538, the Supreme Court considered the maintainability of the petition under Article 227 of the Constitution, against an order passed by Civil Court, passing the interim order of injunction granted by the trial Court. The contesting defendant filed an application under Article 227 of the Constitution of India against the order of the trial Court granting injunction, whereas a regular appeal under Order 43, Rule 1 (r) of the Code of Civil procedure, 1908 was filed by another defendant to the suit. Despite objections to the maintainability of such petition under Article 227, unavailability of appeal remedy under Civil Procedure Code, the High Court allowed the petition and set aside the injunction granted by the trial Court. The High Court rejected the primary objection regarding maintainability on the basis of the few decisions of the Supreme Court, which revolve around the supervisory jurisdiction of the High Court to keep the subordinate Courts within the bounds of law. 10. The Supreme Court in the Judgment supra observed at Paragraphs 11,12 and 13 as under:- “11. Secondly, the High Court ought to have seen that when a remedy of appeal under section 104 (1)(i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu Vs. S. Chellappan & Ors. 1, this Court held that “though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy”. 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling 1 (2000) 7 SCC 695 under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai2, pointed out in Radhey Shyam Vs. Chhabi Nath3 that “orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.” 13. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and 2 (2003) 6 SCC 675 3 (2015) 5 SCC 423 prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself. 11. Learned counsel for the petitioner has taken a plea vis-à-vis the consolidation of suits before the court below to indicate that the jurisdiction in terms of Article 227 was required to be invoked as the remedy of appeal is not available for such cause. The said aspect of the matter can be taken care of independently. 12. In view of above the instant petition is dismissed as not maintainable. It shall be open to the petitioner to avail the remedy of an appeal against the impugned orders. The learned 4th Additional District Judge, Srinagar, shall, however, decide the application of the petitioner for consolidation of the suits, which is stated to be pending before him, at the earliest. Interim direction dated 06.08.2025, shall stand vacated. (MOKSHA KHAJURIA KAZMI) JUDGE Srinagar 24.09.2025 “Mohammad Yasin Dar” Whether the Judgment is reportable: Yes/No. Whether the Judgment is speaking: Yes Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document