GHULAM MOHAMMAD DHOBI vs ABDUL HAMID MALLA
- Court
- Jammu and Kashmir High Court
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
FAO No. 20/2026
Reserved on: 12.10.2026
Pronounced on: 29.10.2026
Uploaded on: 29.10.2026
Whether the operative part or
full judgment is pronounced: FULL
Ghulam Mohammad Dhobi
S/o Mohd Rajab Dhobi,
Proprietor, A-One Dry Cleaners,
R/o Guzarbal Chattabal, Srinagar.
Age- 70 years
...Applicant(s)/Petitioner(s)
Mr. Adil Aismi, Advocate
Through: -
v/s
Abdul Hamid Malla
S/o Late Ghulam Qadir Mall,
R/o Guzarbal Chattabal, Srinagar
...Respondent(s)
Through:- Mr. Zahoor Ahmad Shah, Advocate with
Mr. Sibghatullah Shah, Advocate
CORAM: HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
J U D G M E N T
1. The present appeal is directed against an order passed by the learned
Additional District Judge, Srinagar, in a civil suit titled “Abdul Hamid
Malla v. Ghulam Mohammad Dhobi” , whereby the appellant-defendant
has been directed to deposit an amount of Rs. 56,250/- towards alleged
arrears of rent and to continue depositing occupational charges at the rate
of Rs. 5,000/- per month during the pendency of the suit. The Trial Court
has further granted liberty to the respondent-plaintiff to seek execution of
the order in the event of default.
2. Before adverting to the controversy involved in the present appeal, it
would be appropriate to notice that the respondent-landlord has instituted
two separate suits for ejectment, possession and mesne profits against two
different tenants. The first, being O/S No. 2921/2025, titled “Abdul
Hamid Malla v. Mushtaq Ahmed Zarkab” , and the second, being O/S
No. 2922/2025, titled “Abdul Hamid Malla v. Ghulam Mohammad
Dhobi” , are pending adjudication before the same Trial Court. In both
suits, substantially similar interlocutory directions requiring payment of
arrears and occupational charges came to be issued.
3. The order passed in O/S No. 2921/2025 was challenged by the defendant
therein through FAO No. 19/2026. A Coordinate Bench of this Court, by
judgment dated 08.07.2026, dismissed the appeal as not maintainable,
holding that the order under challenge did not fall within the category of
appealable orders contemplated by Sections 96 and 104 of the Code of
Civil Procedure, read with the relevant provisions governing appeals.
While declining to entertain the appeal, the Coordinate Bench expressly
reserved liberty to the aggrieved tenant to avail of an appropriate remedy,
including invocation of the supervisory jurisdiction of this Court under
Article 227 of the Constitution of India.
4. The appellant in the present case has assailed the order of the Trial Court
principally on the ground that the direction to deposit alleged arrears and
pay occupational charges is arbitrary, legally unsustainable and beyond
the jurisdiction exercisable by the Trial Court at an interlocutory stage. It
is contended that the Trial Court has, in effect, granted a substantial part
of the final relief claimed in the suit without recording evidence or
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adjudicating the disputed questions concerning the relationship between
the parties, the alleged termination of tenancy, the agreed rate of rent and
the respondent's entitlement to mesne profits.
5. Learned counsel for the appellant has vehemently contended that the
judgment rendered by the Coordinate Bench in FAO No. 19/2026 does
not govern the maintainability of the present appeal. According to learned
counsel, the order impugned herein is, in substance and effect, one
referable to Order XXXIX Rule 10 CPC or, alternatively, to the principles
underlying Rules 1 and 2 thereof and, consequently, is appealable under
Section 104 read with Order XLIII CPC. It is submitted that the mere
omission of the Trial Court to specify the provision of law under which
the impugned direction was issued cannot determine the true legal
character of the order or defeat a statutory right of appeal, where such
right otherwise exists. Learned counsel further submits that the judgment
of the Coordinate Bench does not operate as res judicata against the
present appellant, who was not a party to those proceedings.
6. Learned counsel has also drawn the attention of this Court to the interim
order dated 08.07.2026 passed in the present proceedings, whereby, while
entertaining the appeal, this Court observed that the order under challenge
appeared to have been passed in exercise of powers under Order XXXIX
Rule 10 CPC and stayed its operation. It is argued that the direction to
deposit money during the pendency of the suit is manifestly interlocutory
in character and, therefore, amenable to appellate scrutiny under Order
XLIII CPC.
FAO No. 20/2026 Page 3 of 12
7. Per contra, learned counsel for the respondent has opposed the
maintainability of the appeal. It is contended that Order XXXIX Rule 10
CPC operates within a limited statutory field and can be invoked only
where the requisite admission regarding money or property belonging or
due to another party is established. The provision, it is argued, cannot be
employed to adjudicate disputed monetary claims or to impose a liability
which has neither been admitted nor determined. Learned counsel submits
that the respondent's entitlement to ejectment and mesne profits is yet to
be established at trial. Equally, the quantum of mesne profits claimed in
the suit remains a matter requiring evidence and adjudication. It is pointed
out that no reliable material, including any valuation report or
comparative market-rental data, was placed before the learned Trial Court
to establish the prevailing rental value of the suit premises.
8. It is further submitted that the impugned order, having regard to its
substance and the circumstances in which it was passed, is traceable, if at
all, to the inherent powers of the Court under Section 151 CPC. Such an
order, according to learned counsel, does not attract the appellate
jurisdiction of this Court under Section 104 read with Order XLIII CPC.
The appropriate remedy against an order of this nature, if otherwise
permissible in law, would be to invoke the supervisory jurisdiction of this
Court under Article 227 of the Constitution of India.
9. Heard learned counsel for the parties and perused the record.
10. The controversy requiring determination at this stage is confined to the
maintainability of the present appeal. The question is whether the order
directing deposit of alleged arrears of rent and payment of monthly
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occupational charges can, having regard to its substance and legal
foundation, be regarded as an appealable order under the Code of Civil
Procedure.
11. The material facts necessary for determining the aforesaid question may
be noticed briefly. The appellant claims to have been in continuous
possession of the suit premises as a tenant since the year 1975. The
respondent-landlord has instituted a suit seeking ejectment, recovery of
possession and mesne profits, alleging, inter alia, that the appellant has
continued in unauthorized occupation of the premises since the year 2005.
The appellant, on the other hand, disputes the allegation of unauthorized
occupation and maintains that he has consistently been ready and willing
to pay rent at the agreed rate of Rs. 1,250/- per month. His specific case is
that the respondent refused to accept rent with a view to treating him as an
unauthorized occupant. It is further asserted that, in order to avoid any
allegation of default, the appellant deposited the rent with the
Shopkeepers' Committee.
12. By the order impugned, the learned Trial Court directed the appellant to
deposit Rs. 56,250/- towards arrears of rent and to continue paying
occupational charges at the rate of Rs. 5,000/- per month, with liberty to
the respondent-landlord to seek execution of the order in the event of non-
compliance. The learned Trial Court appears to have proceeded on the
premise that the appellant had admitted enhancement of rent to Rs.
15,000/- per annum and that such admission furnished sufficient
justification for directing payment of the amount considered payable. The
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appellant, however, seriously disputes the existence, scope and effect of
the alleged admission.
13. At this juncture, it would be apposite to examine the scope of Order
XXXIX Rule 10 CPC. The provision empowers the Court to direct
deposit or delivery of money or any other thing capable of delivery where
a party admits that such money or thing is held by him as trustee for
another party or that it belongs or is due to that party. The jurisdiction
contemplated by the provision is thus founded upon an admission of the
requisite liability or entitlement. Such admission must be clear,
unequivocal and ascertainable from the pleadings or other material
properly forming part of the record. A disputed liability cannot ordinarily
be converted into an admitted obligation merely by drawing inferences
from isolated statements divorced from their context.
14. In the present case, the alleged admission relied upon by the Trial Court
does not appear to satisfy the aforesaid requirement. The appellant has
consistently disputed his liability to pay occupational charges at the rate
determined by the Trial Court. His stand is that the agreed rent was Rs.
1,250/- per month and that the rent payable by him had already been
deposited with the Shopkeepers' Committee. Whether such deposits were
actually made, whether they constitute valid discharge of the appellant's
rental obligations, and whether any amount remains outstanding are
questions involving disputed facts. These matters cannot, without the
necessary adjudication, be treated as conclusively established merely on
the basis of an alleged admission whose existence and extent are
themselves contested.
FAO No. 20/2026 Page 6 of 12
15. There is also a material distinction between contractual rent payable
during the subsistence of a tenancy and mesne profits or occupational
charges claimed on the premise that possession has become unauthorized.
The two concepts rest upon different legal foundations and cannot be
employed interchangeably without regard to the status of the occupant
and the nature of the liability sought to be enforced. In Atma Ram
Properties (P) Ltd. v. Federal Motors (P) Ltd. , (2005) 1 SCC 705, the
Hon'ble Supreme Court examined the principles governing compensation
for use and occupation of premises by a tenant continuing in possession
after an eviction decree, particularly in the context of conditions imposed
while granting stay of execution. The said decision does not dispense with
the requirement of identifying the legal foundation for imposing
occupational charges in a pending suit where the relevant questions
remain disputed.
16. In the case at hand, the Trial Court, while referring to the subsisting
relationship of landlord and tenant and the alleged admitted rent, has
simultaneously proceeded to impose occupational charges at a
substantially higher rate. The order does not clearly disclose the legal
basis on which the admitted contractual rent, if any, has been
distinguished from or substituted by the amount directed to be paid as
occupational charges. Whether the tenancy has been validly terminated,
whether the appellant's continued possession is unauthorized, and whether
the respondent is entitled to mesne profits, including the quantum thereof,
are matters which fall for adjudication in the suit in accordance with law.
The applicability and effect of Section 106 of the Transfer of Property
FAO No. 20/2026 Page 7 of 12
Act, 1882, insofar as relevant, would likewise require consideration in the
context of the pleadings, governing law and evidence.
17. However, the question presently before this Court is not whether the Trial
Court was justified in directing payment of the aforesaid amounts. The
anterior and determinative question is whether the impugned direction is
appealable under the statutory framework. It is well settled that a right of
appeal is a creature of statute. Such a right cannot be assumed merely
because an order is interlocutory, affects the rights of a party or imposes a
monetary obligation. Unless the order is covered by an express statutory
provision conferring a right of appeal, appellate jurisdiction cannot be
invoked.
18. Order XLIII Rule 1 CPC specifies the orders against which an appeal lies
under Section 104 CPC. An order passed under Order XXXIX Rules 1, 2,
2A, 4 or 10 is appealable by virtue of Order XLIII Rule 1(r). The essential
inquiry, therefore, is whether the order impugned can legitimately be
brought within any of the aforesaid provisions. The mere fact that the
Trial Court has not expressly mentioned the provision of law under which
it exercised jurisdiction is not, by itself, decisive. Equally, the nature of an
order cannot be determined solely by the description assigned to it by
either party. It is the substance of the order, the nature of the power
exercised and the statutory conditions governing that power which must
determine its appealability.
19. Applying the aforesaid principles, this Court is unable to accept the
contention that the impugned order is one passed under Order XXXIX
Rule 10 CPC. The essential foundation for exercise of jurisdiction under
FAO No. 20/2026 Page 8 of 12
the said provision, namely, a clear and unequivocal admission of the
liability sought to be enforced, is not discernible from the material
referred to in the order. The appellant has not admitted any liability to pay
occupational charges at the rate of Rs. 5,000/- per month. On the contrary,
his consistent stand is that he is liable to pay only the agreed contractual
rent, the amount and discharge whereof are themselves matters of
controversy between the parties. The order, therefore, cannot be
characterized as one under Order XXXIX Rule 10 merely because it
directs deposit of money during the pendency of the suit.
20. Nor can the impugned order be brought within the ambit of Order XXXIX
Rules 1 and 2 CPC. Those provisions are concerned with the grant of
temporary injunctions in the circumstances specified therein. The
direction presently under consideration is not, in its substance, an order
granting or refusing temporary injunctive relief of the nature
contemplated by those rules. The argument that every interlocutory
direction involving deposit of money must necessarily be treated as
appealable under Order XLIII CPC is, therefore, legally untenable.
Interlocutory character and statutory appealability are distinct
considerations.
21. Having regard to the nature of the application moved before the Trial
Court, the absence of any clear statutory foundation under Order XXXIX
Rules 1, 2 or 10 CPC, and the substance of the direction issued, the
impugned order appears to have been passed in exercise of the inherent
jurisdiction of the Trial Court under Section 151 CPC. It order passed in
exercise of inherent powers under Section 151 CPC is not, merely by
FAO No. 20/2026 Page 9 of 12
reason of such exercise, rendered appealable under Section 104 read with
Order XLIII CPC. The correctness, legality or propriety of such an order
may be examined in appropriate proceedings, subject to the requirements
and limitations governing the remedy invoked, but the absence of a
statutory right of appeal cannot be overcome by attributing to the order a
provision which does not, in substance, govern it.
22. The aforesaid view is also consistent with the judgment rendered by the
Coordinate Bench of this Court on 08.07.2026 in FAO No. 19/2026,
arising out of substantially similar directions passed by the same Trial
Court in the connected suit instituted by the same landlord against another
tenant. It is true that the said judgment does not operate as res judicata
against the present appellant, who was not a party to those proceedings.
Nevertheless, the legal principle laid down therein on the question of
maintainability is entitled to due regard, particularly when the orders arise
out of materially similar circumstances and involve an identical question
of law. No distinguishing feature has been demonstrated which would
warrant a different conclusion in the present case.
23. The reliance placed by counsel for the appellant upon the interim
observation recorded by this Court on 08.07.2026 is equally
misconceived. An observation made at the stage of granting interim
protection, to the effect that the impugned order appeared to have been
passed under Order XXXIX Rule 10 CPC, was necessarily tentative and
prima facie in character. Such an observation cannot confer appellate
jurisdiction where none is provided by statute, nor can it preclude the
FAO No. 20/2026 Page 10 of 12
Court from determining the question of maintainability upon fuller
consideration of the record and the rival submissions.
24. It must also be clarified that the conclusion reached herein is confined to
the maintainability of the appeal. This Court has not adjudicated upon the
legality or sustainability of the direction requiring deposit of Rs. 56,250/-
towards arrears or payment of Rs. 5,000/- per month as occupational
charges. Nor has this Court expressed any final opinion on the existence
or termination of tenancy, the agreed rate of rent, the alleged deposits
made with the Shopkeepers' Committee or the respondent's entitlement to
mesne profits. All such questions, insofar as they arise for determination,
shall remain open to be examined by the competent forum in accordance
with law.
25. For the reasons recorded hereinabove, this Court is of the considered view
that the impugned order cannot be brought within the purview of Order
XXXIX Rules 1, 2 or 10 CPC so as to attract the appellate jurisdiction
under Section 104 read with Order XLIII CPC. The appeal, therefore, is
not maintainable. The appellant shall, however, be at liberty to avail of
such appropriate remedy as may be permissible under law, including
invocation of the supervisory jurisdiction of this Court under Article 227
of the Constitution of India. Any such proceedings, if instituted, shall be
considered on their own merits and in accordance with law, uninfluenced
by any observations made herein except insofar as they relate to the
question of maintainability of the present appeal. Accordingly, the appeal
is dismissed as not maintainable , without prejudice to the appellant's
FAO No. 20/2026 Page 11 of 12
right to pursue an appropriate remedy available under law. All connected
CM(s) shall also stand disposed of.
26. Dismissed.
(Sanjay Parihar)
Judge
SRINAGAR
29.10.2026
Akhil Dev
Whether the order is speaking? : Yes
Whether the order is reportable? : Yes
FAO No. 20/2026 Page 12 of 12