Dismisses petition filed by Pujari of Shiv Mandir Jhiri
Excelsior Correspondent
JAMMU, Aug 23: High Court of Jammu & Kashmir and Ladakh has held that no proceedings initiated by the public authorities can be stalled by grant of injunction particularly without arraying the public authority as necessary party.
The Bench of Justice Wasim Sadiq Nargal was dealing with a petition filed by Kailash Nath, Pujari of Shiv Mandir Jhiri, who after the death of his father stepped into his shoes and performing his duties for the last more than 33 years. It was averred in the petition that respondents—Mulkh Raj (Sarpanch), S P Sharma (Naib Tehsildar) and Khurshid Ahmed (Patwari) Jhiri Marh started interference in the peaceful performance of the petitioner and trying to evict him forcibly from the Dharamshala.
Accordingly, the petitioner filed a civil suit and the trial court vide interim order dated 1.08.2019 directed the parties to maintain status-quo with regard to performing of the Pooja at Shiv Mandir Jhiri. On being put to notice in the civil suit, the respondents filed their written statement and relied upon a general order passed by Sub-Divisional Magistrate, Marh whereby Naib Tehsildar Jhiri was directed to evict the illegal occupants of Sarai attached to Baba Jitto Temple.
However, the trial court passed the order dated 17.09.2020 whereby the interim order was made absolute and parties were directed to maintain status-quo. Against the order of trial court, the respondents knocked the doors of Appellate Court, which set-aside the order passed by the trial court. Against the order of the Appellate Court, the petitioner approached the High Court with the instant petition.
After hearing both the sides, Justice Wasim Sadiq Nargal observed, “in the light of various pronouncements made by the Apex Court, the law stands crystallized that judicial interference under Article 227 of the Constitution of India will be invoked only when court finds any grave illegality or flagrant violation of fundamental principle of law”.
“The perusal of the record shows that the SDM Marh while exercising his authority had issued letter No. SDM/M/PS/2019-20/461 dated 17.07.2017, whereby the Naib Tehsildar and Patwari were directed to evict the illegal occupants from Sarai. Further, the record reveals that the petitioner chose not to implead the SDM Marh as party to the suit”, Justice Nargal said, adding “thus, this court does not find any legal infirmity with respect to the finding of the Appellate Court with regard to suit being non-maintainable on account of non-joinder of SDM Marh”.
Pointing towards Section 80 of the Code of Civil Procedure, High Court said, “this Section provides for issuing notice by a person to the Government and its officials for resolving his grievances and further allows such person to file a suit only after completion/expiry of two months from the date of issuance of notice. Also, Sub Section 2 of the Section 80 of the CPC, provides for an exemption to issue such notice to Government or its officials, subject to getting leave of the court, where the suit has been filed”.
“However, in the instant case the petitioner has neither issued any prior notice nor any leave has been sought from the court. Thus, the petitioner without adopting the due procedure has proceeded to file the suit”, High Court said, adding “the trial court has not correctly appreciated the settled legal position while passing the order of temporary injunction. The passing of interim relief by the trial court in favour of the petitioner was perverse in the eyes of the law”.
The High Court further said, “this court is in agreement with respect to the finding recorded by the Appellate Court that no proceedings initiated by public authorities can be stalled by grant of injunction without arraying the public authority as necessary party”, adding “the petitioner has no legal right to possess the suit property as such the impugned order passed by the Appellate Court doesn’t call for any interference”.
“Accordingly, this court deems it proper that before proceeding further in the matter, the trial court shall decide the question of maintainability of the suit keeping in view the objections raised in the written statement filed by the defendants/respondents within a period of four weeks from the date copy of this order is served to the trial court”, read the order passed by High Court while dismissing the petition
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