BALWANT SINGH vs KRISHAN SINGH AND ANOTHER

Court
Jammu and Kashmir High Court

124

HIGH COURT OF JAMMU, KASHMIR AND LADAKH
AT JAMMU


Uploaded on 28.10.2026

CM(M) No. 228/2026



Balwant Singh …..Appellant(s)/Petitioner(s)


Through: Mr. Lawanya Sharma, Adv.
Q
vs


Krishan Singh and another .…. Respondent(s)

Through: Mr. C. M. Koul, Sr. Adv.with
Mr. Arshad Hussain, Adv.



Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE




ORDER
23.10.2026



1. Through the medium of present petition, the petitioner has challenged order
dated 10.10.2026 passed by the Principal District Judge, Reasi(hereinafter to
be referred as the appellate court), whereby ex parte interim order dated
11.08.2026 passed by the learned Sub Judge, Reasi(hereinafter to be referred
as the trial court) has been kept in abeyance. Challenge has also been thrown
to the proceedings emanating out of the appeal filed by the respondents
against the aforesaid order of the learned trial court.
2. Issue notice to the respondents. Mr. Arshad Hussain, Advocate, who is on
caveat, accepts notice on behalf of the respondents. Caveat shall stand
discharged.
3. I have heard learned counsel for the parties and perused record of the case.
Rakesh Kumar
2026.10.18 05:25
I attest to the accuracy and
integrity of this document


4. It appears that the petitioner/plaintiff has filed a suit for declaration and
injunction against the respondents/defendants and proforma
respondents/defendants before the learned trial court. By way of the said suit,
the plaintiff has sought a declaration that the sale deed dated 20.01.2023
executed by defendant No. 1 in favour of defendant No. 2 in respect of land
measuring 1 kanal and 19 marlas falling under khasra Nos. 1811, 1317, 786
and 133 situated at Village Mahore, Tehsil Mahore, District Reasi is null and
void, on the ground that the suit land is joint and unpartitioned amongst the
co-owners. The plaintiff has also sought permanent prohibitory injunction
restraining the defendants from raising any construction on the suit land or
from dispossessing the plaintiff from the said land. Along with the suit, the
plaintiff filed an application under Order XXXIX Rules 1 and 2 of the Code
of Civil Procedure (for short the Code) before the learned trial court.
5. On 11.08.2026, the learned trial court passed an ex parte interim order in
favour of the plaintiff, whereby the parties to the suit were directed to
maintain status quo with respect to the possession over the suit land. It also
appears that on 02.09.2026, the learned trial court passed another order
directing implementation of order dated 11.08.2026 through the Police
Agency. On 16.09.2026, the defendants filed appeal against order dated
02.09.2026(supra) before the learned appellate court and vide order dated
16.09.2026 passed in the said appeal, order dated 02.09.2026 passed by the
learned trial court was kept in abeyance. The record shows that the
defendants filed another appeal against order dated 11.08.2026 passed by the
learned trial court before the learned appellate court and, vide impugned
CM(M) No. 228/2026 Page 2 of 8

order dated 10.10.2026, the learned appellate court directed that order dated
11.08.2026 passed by the learned trial court be kept in abeyance.
6. The plaintiff/petitioner has challenged the order impugned and the appellate
proceedings on the grounds that the learned appellate court has passed the
impugned orders without giving notice to the plaintiff even though he had
filed a caveat application before the said court. It has also been contended
that order dated 11.08.2026 passed by the learned trial court was ex parte ad
interim in nature, as such, the same is neither appealable nor revisable. It has
been contended that the learned appellate court, while passing the impugned
order has, exceeded its jurisdiction.

7. The facts narrated hereinabove, project a disturbing state of affairs as regards
the manner in which the appellate court has readily entertained the appeal
against an ex parte interim injunction order, without satisfying itself as to
whether doing so was warranted in the facts and circumstances of the case.
Not only has the learned appellate court entertained the appeal, but it has
proceeded to pass an ex parte interim order in favour of the
appellants/defendants, which is under challenge before this Court. Neither of
the parties has shown patience in pursuing the appropriate remedy of getting
the application under Order XXXIX Rules 1 and 2 of the Code decided on its
merits. The approach adopted by the learned appellate court has compounded
the situation, leading to multiplicity of proceedings without actually ensuring
the decision of the lis on its merits.
8. The question that is required to be determined in the first instance is as to
whether an ex parte interim order passed in terms of Order XXXIX Rules 1
and 2 of the Code is appealable in nature and if so, whether the proper course
CM(M) No. 228/2026 Page 3 of 8

for the appellate court would have been to remand the case to the trial court
with a direction to decide the application under Order XXXIX Rules 1 and 2
of the Code on its merits after hearing the parties, instead of entertaining the
appeal.
9. As per the provisions contained in Order XLIII of Rule 1(r) of the Code, an
order passed under Order XXXIX of Rules 1 and 2 of the Code is appealable
in nature. Thus, an order passed by a civil court on an application under
Order XXXIX of Rules 1 and 2 of the Code, whether it is ex parte or
whether the same has been passed after hearing the parties, is appealable in
nature in terms of Order XLIII of Rules 1(r) of the Code.

10. Generally the Courts are loathe to entertain appeal against an ex parte
interim order passed in terms of Order XXXIX of Rules 1 and 2 of the Code
and the parties are more often than not asked to approach the trial court and
get the application under Order XXXIX of Rules 1 and 2 of the Code
decided on its merits before approaching to the appellate court. However,
there is no absolute bar to entertain an appeal against an ex parte interim
order passed in terms of Order XXXIX of Rules 1 and 2 of the Code. In
deserving and appropriate cases, it would be open to appellate court to
entertain and decide an appeal on its merits even against an ex parte interim
order passed under Order XXXIX of Rules 1 and 2 of the Code.

11. The Supreme Court in the case of A. Venkatasubbiah Naidu v. S.
Chellappan and others, (2000)7 SCC 695 has illustrated one of the
situations where the appellate court can entertain an appeal even against ex
parte interim order passed in terms of Order XXXIX of Rules 1 and 2 of the
CM(M) No. 228/2026 Page 4 of 8

Code. The relevant observations of the Supreme Court are reproduced as
under:
“It is the acknowledged position of law that no party can be forced
to suffer for the inaction of the court or its omissions to act
according to the procedure established by law. Under the normal
circumstances the aggrieved party can prefer an appeal only
against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39
of the Code in terms of Order 43 Rule 1 of the Code . He cannot
approach the appellate or revisional court during the pendency of
the application for grant or vacation of temporary injunction. In
such circumstances the party who does not get justice due to the
inaction of the court in following the mandate of law must have a
remedy. So we are of the view that in a case where the mandate of
Order 39 Rule 3A of the Code is flouted, the aggrieved party,
shall be entitled to the right of appeal notwithstanding the
pendency of the application for grant or vacation of a temporary
injunction, against the order remaining in force. In such appeal, if
preferred, the appellate court shall be obliged to entertain the
appeal and further to take note of the omission of the subordinate
court in complying with the provisions of Rule 3A. In appropriate
cases the appellate court, apart from granting or vacating or
modifying the order of such injunction, may suggest suitable action
against the erring judicial officer, including recommendation to
take steps for making adverse entry in his ACRs. Failure to decide
the application or vacate the ex-parte temporary injunction shall,
for the purposes of the appeal, be deemed to be the final order
passed on the application for temporary injunction, on the date of
expiry of thirty days mentioned in the Rule.”

12. From the above analysis of legal position, it is clear that in a case where the
mandate of Order XXXIX Rule 3-A of the Code is flouted, the aggrieved
party is entitled to the avail the right to file an appeal notwithstanding the
pendency of the application for grant or vacation of a temporary injunction.
Similarly, in a case where an ex parte interim injunction has been passed by
a court having no jurisdiction or that such order suffers from manifest
perversity, the appellate court would be justified in entertaining an appeal.
13. Turning to the facts of the case, ex parte interim injunction order was passed
by the learned trial court on 11.08.2026 and the case was posted to
14.09.2026. On that date, it appears that the defendants filed their written
CM(M) No. 228/2026 Page 5 of 8

statement before the trial court. The defendants, without pursuing the case
before the trial court with a view to seek disposal of the application under
Order XXXIX Rules 1 and 2 of the Code and get the interim injunction
vacated, approached the appellate court by way of an appeal on 16.09.2026
for assailing order 02.09.2026 passed by the learned trial court and by way of
another appeal filed on 10.10.2026, for assailing the basic order dated
11.08.2026.
14. So far as order dated 02.09.2026 passed by the learned trial court is
concerned, the same is not appealable in nature as such, it was not open to
the learned appellate court to entertain the appeal against the said order.

15. So far as appeal against order dated 11.08.2026 is concerned, the same could
have been entertained by the learned appellate court if it was a case where
the learned trial court had resorted to delaying tactics in deciding the
application under Order XXXIX of Rules 1 and 2 of the Code or if the
ex parte interim order passed by the learned trial court would have been
without jurisdiction or if there was any manifest perversity attributable to the
said order.
16. The learned appellate court has not recorded any reason for entertaining the
appeal against ex parte interim order, while passing impugned order dated
10.10.2026. The impugned order is cryptic in nature and it does not assign
any reason much less a cogent reason for entertaining the appeal against the
order passed by the learned trial court. Even otherwise ex parte interim order
passed by the trial court is neither perverse nor the same is without
jurisdiction. The impugned order passed by the appellate court is, therefore,
not sustainable in law. The same deserves to be set aside. In fact, this Court
CM(M) No. 228/2026 Page 6 of 8

does not find any justification for entertaining the appeal against the order of
the learned trial court as such, the appeal(s) ought not have been entertained
by the appellate court.
17. This Court way back in the year 1994 in the case of K. K. Puri and others
vs. A. K. Puri and others, AIR 1994 J&K 25 had deprecated the growing
tendency of the litigants to bypass the trial courts in matters where
ex parte orders are subject to objections of the other side. It would be apt to
reproduce paragraph (25) of the aforesaid judgment, which reads as under:
“25. Before parting, I deem it appropriate to advert to the growing
tendency of the litigants to by-pass the trial courts in matters where ex
parte orders are subject to objections of other side and even valid only
till next date and vacation whereof can be sought under Rule 4 of
Order 39, CPC before the trial Court. It has been consistent policy and
practice of this court not to entertain such appeals and not to interfere
in such orders. A Full Bench of this Court has approved of this policy
in Astral Traders v. Haji Mohd. Shaban Dar , 1982 Ker LJ 324 : (AIR
1982 J & K 124) after giving reasons in its support. This practice has
almost hardened into a rule and it is in very rare cases that a departure
is made where impugned orders appear manifestly perverse or where
these suffer from any manifest lack of jurisdiction or where the bias
of the trial Court is apparent on the face of record. There may be
some other circumstances also which may warrant interference, but
by and large, this policy is adhered to discourage litigating parties
from rushing to this Court.”

18. For the foregoing position of law, it is clear that the learned appellate court
has fallen into a grave error in entertaining the appeal against an ex parte
interim order passed by the learned trial court and thereafter, passing another
ex parte interim order in favour of the defendants/appellants. The proper
course for the learned appellate court would have been to dispose of the
appeal with a direction to the learned trial court to decide the application
under Order XXXIX Rules 1 and 2 of the Code within a time-bound manner,
by adhering to the timelines stipulated under Order XXXIX Rule 3-A of the
Code.
CM(M) No. 228/2026 Page 7 of 8


19. In view of the foregoing discussion, the present petition is allowed and the
impugned order dated 10.10.2026 passed by the appellate court is set aside.
The appeals filed by the defendants against order dated 11.08.2026 and
02.09.2026 passed by the learned trial court, which are pending before the
appellate court along with present petition are disposed of with a direction to
the learned trial court to decide the application of the plaintiff under Order
XXXIX of Rules 1 and 2 of the Code most expeditiously, preferably within a
period of one month from the date a copy of this order is made available to
the said court.
20. Till such time the aforesaid application is decided by the learned trial court,
the ex parte interim order dated 11.08.2026 passed by the said court shall
remain in force and in case the plaintiff adopts any delaying tactics before
the trial court, the ex parte interim order dated 11.08.2026 shall stand
automatically vacated after the expiry of aforesaid period of 30 days.

(SANJAY DHAR)
JUDGE

Jammu
23.10.2026
Rakesh PS
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
CM(M) No. 228/2026 Page 8 of 8