1 CM(M) No. 355/2024 S. No. 4 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No. 355/2024 Mohammad Khalil Shah and Ors. …Appellant/Petitioner(s) Through: Mr. T. A. Lone, Advocate with Ms. Sabia Hilal, Advocate Vs. Mohammad Yousuf Shah and Ors. ...Respondent(s) Through: Mr. Jahangir Iqbal Ganaie, Sr. Advocate with Mr. Owais Ahmad Dar, Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 31.07.2025 1. Setting-aside of Order dated 02.07.2022 passed by the Court of Sub- Judge/Special Mobile Magistrate, Anantnag, (for short “the Trial Court”) in case/application filed under Order 39 Rule 2-A CPC titled “Mohammad Yousuf Shah and Ors. vs. Mohammad Khalil Shah and Ors”, whereby it ordered attachment of suit property, i.e. land measuring 4 ½ falling under Survey No.2307/868 along with one half of residential house except Kitchen, in the house and cow shed, situated at Seer Hamdan Mattan, Anantnag, with a further stipulation to the respondents/petitioners herein to remain present before the Court and explain as to why they should not be committed to civil prison for a period of one month, is sought for in this petition, on the ground that the Trial Court has passed the order impugned without following the procedure and without giving an opportunity of being to the petitioners herein. 2. It is evident from the perusal of order impugned that the application was filed under Order 39 Rule 2-A CPC, seeking initiation of proceedings against the petitioners herein, in which Mr. Adil Ahmad, Advocate, appeared on behalf of petitioners and sought time to file response and requested for providing him an opportunity of being heard. It is clear from the order impugned that the petitioners had 2 CM(M) No. 355/2024 neither been given an opportunity of being heard nor had any chance been given to them to file their response. Order impugned reads as under:- “Application in terms of Order 39 Rule 2-A CPC seeking proceedings against the respondents which are six in number, has been filed before this court. Advocate Adil, appearing for the respondents has submitted that he be provided an opportunity to file response to the application. However, on perusal of the material on record, I am convinced that apparently it appears that the defendants have violated the order dated 26.04.2021 whereby the parties to the lis were directed to maintain status quo with respect to the suit land measuring 4 ½ marlas falling under Survey No. 2307/868 along with one half of residential house and cowshed situated at Seer Hamdan Mattan, Anantnag. An application has been filed by the counsel for the defendants who had sought time for extension of time in filing of the written statement. Application be made part of the record, and for the reasons given in the application, time is granted to the defendants to file written statements positively by next date of hearing, failing which their right to file written statement shall be closed. Coming to the application filed for initiation of contempt proceedings, it appears from the record that various applications have been filed incudes the application for implementation of interim order and application for status quo ante. As per the contents of the application, the applicant/plaintiff is sure to succeed in the case and has produced before the court as Pen Drive along with a certificate of Section 5(b) wherein the plaintiff has recorded the process of dispossession undertaken by the respondents in the mater. Giving the fact that apparently it appears that there has been willful default and disobedience of the order passed by this court, I deem it fit and proper to order attachment of the subject property, i.e. land measuring 4 ½ marls falling under survey No.2307/868 along with one half of residential house except Kitchen in the house and cowshed situated at Seer Hamdan Mattan Anantnag. Accordingly, Tehsildar concerned is directed to attach the aforesaid property except Kitchen and submit compliance report by next date fixed in the matter. This order shall be subject to objections from the other side who may apply for vacation or modification of the order. Respondents further through their counsel are directed to remain present before the court and explain as to why they should not be committed to civil prison for a period of one month. Let application shall come up for response, while as the main file shall come up for written statement. Put up on 18.07.2022.” 3. What gets revealed from the order impugned is that the Trial Court without following the procedure and without giving an opportunity of being heard to the petitioners proceeded in the matter and has passed order impugned. Record of Trial Court also reveals that the order in respect of which disobedience was alleged and initiation of proceedings sought, had been passed in ex parte and was subject to objections. The Trial Court before proceeding further in the matter 3 CM(M) No. 355/2024 ought to have sought objections from petitioners and afforded them a hearing to put up their case and only thereafter passed the order impugned. 4. It is the submission of learned counsel for the petitioners that though the attachment order has been passed by Trial Court, yet it could not be executed because it does not give specifications of the portion of the residential house/property in question that was to be attached 5. In the above backdrop, I find that the order impugned is vague and has been passed without following due procedure of law, therefore, requires to be quashed. Accordingly, this petition is allowed and Order dated 02.07.2022 passed by the court of Sub-Judge/Special Mobile Magistrate, Anantnag, in an application filed under Order 39 Rule 2-A CPC titled “Mohammad Yousuf Shah and Ors. vs. Mohammad Khalil Shah and Ors” is set-aside. The Trial Court is directed to consider and decide the application filed under Order 39 Rule 1 and 2 CPC and also application filed under Order 39 Rule 2-A CPC expeditiously without any delay. 6. Till the application is decided by Trial Court, the parties are directed to maintain status quo. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 31.07.2025 Manzoor Manzoor Ul Hassan Dar I attest to the accuracy and authenticity of this document Srinagar 01.08.2025 16:19