28 Regular HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR FAO No. 35/2023 Ishtiyaq Ahmad ….. Appellant (s) Through: Mr. Manzoor A Dar, Adv. with Mr. Javid, Adv. V/s Ms. Hajra and Ors. ….. Respondent(s) Through: Mr. Aqib Ajaz, Adv. with Ms. Saniya Noor, Adv. Coram: Hon’ble Mr. Justice Sanjay Dhar, Judge ORDER 13.05.2025 1. This is an appeal filed by the appellant/defendant No. 1 before the trial court against the order dated 08.08.2023 passed by the learned 4th Additional District Judge, Srinagar in a suit filed by defendants/respondent No. 1 to 4 against the appellant and proforma respondent No. 5 and 6, seeking specific performance of agreement to sell. In terms of the impugned order, two applications one filed by the appellant/defendant No.1 under Order 7 Rule 11 of Code of Civil Procedure and another filed by respondent Nos. 1 to 4/plaintiffs under Order 39 Rule 1 and 2 of Code of Civil P a g e | 2 FAO No. 35/2023 Procedure Code, have been disposed of. The appellant/defendant No. 1 is aggrieved of the impugned order only to the extent of order passed by the trial court in the application under Order 39 Rule 1 and 2 of Code of Civil Procedure Code. 2. Heard and considered. 3. Learned counsel for the appellant/defendant No. 1 has submitted that though the appellant has no difficulty in complying with the order of the trial court whereby he has been directed not to create any third party interest in respect of suit property but under the garb of said order, the plaintiffs/respondent No. 1 to 4 are trying to dispossess the appellant/defendant No. 1 from part of the suit property described as “Property No. C” in the impugned order. It has been submitted that prior to passing of the impugned order, there was an order of the trial court in operation whereby both the parties were directed to maintain status quo with respect to the suit property and by virtue of the impugned order, the status quo has been clarified by providing that the appellant/defendant No. 1 shall not create any third party P a g e | 3 FAO No. 35/2023 interest in the suit property. It is being alleged that the respondents No. 1 to 4/plaintiffs are taking advantage of the said situation and are trying to dispossess the appellant/defendant No. 1 from the suit property. 4. Learned counsel for the respondent No. 1 to 4/plaintiffs on the other hand, has contended that the appeal is barred by limitation and even otherwise on merits also, the impugned order does not call for any interference. 5. Without going into the merits of the rival contentions made by the parties, one thing is clear that in an application under Order 39 Rule 1 and 2 of Code of Civil Procedure filed by the plaintiffs, the order restraining the respondent No. 1 to 4/plaintiffs from interfering in possession of the appellant/defendant No. 1 cannot be passed. Therefore, there was no occasion for the learned trial court to pass such order in favour of the appellant/defendant No.1. The impugned order, as such, does not call for interference. 6. At this stage, learned counsel for the appellant/defendant No. 1 has submitted that in fact appellant/defendant No. 1 has already filed an application under Section 151 of CPC before P a g e | 4 FAO No. 35/2023 the learned trial court with a prayer for protecting his possession with regard to the aforesaid property, however no orders are being passed by the learned trial court on the said application. 7. In view of the above, the appeal is disposed of with a direction to the learned trial court to decide the application under Section 151 of Code of Civil Procedure filed by the appellant/defendant No. 1 most expeditiously preferably within a period of 15 days from the date a copy of this order is made available to the learned trial court. Of course, the learned trial court before passing order on the said application, shall give opportunity of hearing to both the parties. Till such time, the aforesaid application under Section 151 of CPC is decided by the learned trial court, the parties shall maintain status quo regarding possession with respect to suit Property No. “C” 8. Disposed of as above. (Sanjay Dhar) Judge SRINAGAR 13.05.2025 Aasif