Shah Masood Ahmad Vs Shah Shabir Ahmad and Anr.

1. The petitioner herein has invoked the supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution for quashing of order dated 16.12.2024, passed by the Court of City Judge, Srinagar in case titled as “Shah Shabir Ahmad Vs Shah Masood Ahmad & Ors.”.

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Facts emerging from the record would reveal that the respondent 1 herein filed a suit before the court below for injunction against the defendant/petitioner herein besides one Mst Aisha, mother of the parties herein on the premise that a plot of land measuring 7928 sq. feet (1 kanal and 9 marlas and 40 sq ft.) was previously possessed by one Abdul Hamid Khan and allotted by J&K Housing Board in his favour situated at Sanatnagar Rawalpora, Srinagar and pursuant to a Partition Deed, the said plot of land including the house constructed thereon vested unto the parties, being the plaintiff/respondent herein, defendant/petitioner herein as also the above named mother and that the defendant/petitioner herein started trespassing into his share and invaded his peaceful

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possession thereof, by breaking open the lock of the gate installed by the plaintiff/respondent herein installed qua his share.

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During the pendency of the said suit, the plaintiff/respondent herein instituted an application seeking impleadment of J&K Housing Board as party defendant in the said suit, which application came to be allowed in terms of order dated 19.02.2024 passed by the court below and consequently Housing Board came to be impleaded as party defendant. However, the plaintiff/respondent herein instead of confining the amendment of the plaint to the impleadment of the Housing Board also incorporated a relief of the grant of decree of mandatory injunction in his favour and against the Housing Board in the amended plant, to which the defendant/petitioner herein did not object to, however, instead chose to maintain an application under Order 7 Rule 11(d) CPC for rejection of the plaint on the ground that the suit against the Board is barred for want of notice envisaged under Section 57 of the J&K Housing Board Act of 1976.

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The said application filed by the defendant/petitioner herein, however, came to be rejected by the trial court in terms of the impugned order, while holding that the suit is not liable to be rejected in terms of Order 7 Rule 11 CPC, aggrieved whereof the defendant/petitioner herein has maintained the instant petition.

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Reply to the petition has been filed by plaintiff/respondent herein wherein the petition is being opposed and consequently dismissal of the petition is being sought.

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Heard counsel for the parties and perused the record.

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As has been noticed in the preceding paras, the plaintiff/respondent herein during the pendency of the suit filed an application for impleadment of J&K Housing Board as party defendant to the suit, however, upon allowing of the said application by the court below to the said extent, the plaintiff/respondent besides impleading the Housing Board as a party defendant in the suit also incorporated/ added a prayer in the answered suit and prayed for issuance of a

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decree of mandatory injunction against the Board for directing the Board to allot the plot in question, wherein the residential house possessed and occupied by the parties have had been constructed by their predecessor-in-interest, in their favour to the extent of their respective shares.

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Although the said amended plaint filed by the plaintiff/respondent was beyond the ambit and scope of the amendment sought and granted by the court below, yet record reveals that neither the defendant/petitioner nor the trial court objected to the incorporation of the said relief in the amended plaint by the plaintiff /respondent herein and consequently the said order of the amendment assumed finality as same was not even thrown challenge to by the defendant/petitioner herein or else the Housing Board.

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Indisputably the defendant/petitioner herein after the impleadment of the Housing Board as party to the suit sought rejection of the plaint/suit on the ground that the suit is barred by law while invoking the provisions of Order 7 Rule 11 (d) CPC for want of prior notice under Section 57 of the Act, 1976, which Section contemplates that no person shall commence any suit against the Board or against any Officer or Servant of the Board or any person acting under orders of the Board for anything done or purporting to have been done, in pursuance of this Act, without giving to the Board, Officer or Servant or person two months previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the Act complained of .

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Having regard to the aforesaid position obtaining in the matter, the short question that arises for consideration of this Court would be as to “whether the defendant/petitioner herein could have sought the rejection of the plaint on the ground of non-service of notice under section 57 of the Act of 1976”.

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As is manifest from the plain reading of Section 57 supra the object thereof seemingly is to acquaint the Housing Board or its Officer or Servant inasmuch as any person acting under the orders

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of the Board with the facts and circumstances which necessitate a prospective plaintiff to institute a suit, meaning, in essence thereof to afford an opportunity to the Board its Officer or Servant or any person acting under the orders of the Board to settle the claim of the prospective plaintiff, if the Board choses so.

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11.Admittedly the defendant/petitioner herein is neither directly nor remotely connected with the provisions of section 57 of the Act or else the relief sought in the suit filed by the plaintiff/respondent herein against the Boar thus, rejection of the plaint prayer would be available only to the Board or its officers so on and so fourth and not to the defendant/petitioner herein as otherwise it would amount to allowing the defendant/petitioner herein to fight out the case instituted by the plaintiff/respondent herein against the Board or and on behalf of the Board, without any locus standi.

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In view of aforesaid position, the application maintained by the defendant/petitioner herein for rejection of the plaint filed before the Court below cannot but be said grossly misconceived and legally incompetent.

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13.Resultantly the instant petition fails as also the aforesaid application filed by the defendant/petitioner seeking rejection of the plaint, however, on the basis of aforesaid analysis notwithstanding the analysis undertaken by the court below.

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14. Dismissed along with all connected applications.

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(JAVED IQBAL WANI) JUDGE

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SRINAGAR:

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02.09.2025

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“S.Nuzhat”

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Whether the order is speaking Yes/No Whether the order is reporting Yes/No

Shah Masood Ahmad v. Shah Shabir Ahmad and Anr.

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Shah Masood Ahmad v. Shah Shabir Ahmad and Anr.

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