Jammu & Kashmir High Court - Srinagar BenchSyed Abdul Hamid Bhat (Aged: 59 Years) vs J&K Yateem Foundation on 12 December, 2023Author:Sanjeev KumarBench:Sanjeev KumarHIGH COURT OF JAMMU & KASHMIR AND LADAKH\n                     AT SRINAGAR\n\n                             FAO No. 36/2023\n                                               Reserved On: 4th December, 2023\n                                            Pronounced on:      December, 2023\n\nSyed Abdul Hamid Bhat (Aged: 59 years)\nS/o Syed Mirak Shah\nR/o Dharmuna Tehsil & District: Budgam\n                                                           ..... Appellant(s)\nThrough:      Mr. G.A. Lone, Advocate.\n\n                            V/s\n\n1.   J&K Yateem Foundation, Central Office at\n     Bait-ul-Hilal 42-Al Farooq Colony Jawahar\n     Nagar Srinagar Through its Chairman\n     Mohammad Ahsan Rather S/O Mohammad\n     Rustum Rather R/O Sir Syed Abad Bemina,\n     Srinagar.\n\n2.   Jammu & Kashmir Bank through its Chairman\n     and Chief Executive Officer Corporate\n     Headquarter M.A. Road, Srinagar.\n\n3.   President KYC/ALM Department Jammu &\n     Kashmir Bank Corporate Headquarter M.A.\n     Road, Srinagar.\n\n4.   I/C KYC/ALM Department Jammu & Kashmir\n     Bank Corporate Headquarter M.A. Road,\n     Srinagar.\n5.   Branch Manager Jammu & Kashmir Bank\n     Branch Unit Amira Kadal, Srinagar.\n\n6.   Branch Manager Jammu & Kashmir Bank\n     Branch Unit Jawahar Nagar, Srinagar.\n\n7.   Branch Manager         HDFC     Bank     Nowgam,\n     Srinagar.\n\n8.   Branch Manager Axis Bank Jahangir Chowk,\n     Srinagar.\n9.   Branch Manager State Bank of India, Jawahar\n     Nagar, Srinagar.\n                                                          .....Respondent(s)\nThrough:      Mr. Z.A. Qureshi, Sr. Advocate with,\n              Ms. Moneesa Manzoor, Advocate, for R-1.\n              Mr. Mir Suhail, Advocate for R-2 to 6.\n\n\nPage 1 of 8                                          FAO No. 36/2023\n CORAM:\n              HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.\n\n                                 JUDGMENT01.           This Civil Miscellaneous Appeal filed underOrder 43 of the\n\nCode of Civil Procedure, is directed against an order dated 12th September,\n\n2023, passed by the learned 4th Additional District Judge, Srinagar [for short\n\n"the Trial Court"] in the civil suit titled "Jammu & Kashmir Yateeem\n\nFoundation VS Jammu and Kashmir Bank and Others".02.           Briefly put, the facts leading to the filing of this appeal by the\n\nappellant (Respondent No. 9 in the suit) are that, a suit in the name of\n\nJammu and Kashmir Yateem Foundation through its Chairman Mohammad\n\nAhsan Rather was filed against the Jammu and Kashmir Bank and Others, in\n\nthe Trial Court on 27th December, 2021. The Respondent No. 1 (Plaintiff in\n\nthe suit) also filed along with the suit, an application for an interim\n\ninjunction for allowing him to operate various bank accounts opened in the\n\nname of Jammu and Kashmir Yateem Foundation at different branches of\n\nthe Jammu and Kashmir Bank as well as in the branches of Axis bank, State\n\nBank of India, etc., etc.03.           As is projected before this Court the plaintiff was forced to\n\ninstitute a suit when he was confronted with an email dated 13th December,\n\n2020, issued by the Jammu and Kashmir Bank for submission of "Know\n\nYour Customer (KYC)" particulars. It may be noted that when the suit was\n\ninitially instituted, the appellant was not arrayed as a defendant. It is only\n\nafter an application in this regard was made by the applicant, he was arrayed\n\nas party defendant No. 9 in the suit.Page 2 of 8                                            FAO No. 36/202304.           Be that as it may, on the very first date when the suit was\n\npresented and the application for interim injunction filed underOrder 39\n\nRule 1 CPCwas considered, an ad-interim ex-parte injunction was issued\n\nallowing the plaintiff to operate bank accounts. However, when the appellant\n\nherein was impleaded as party defendant No. 9, he moved an application for\n\nvacation of the order of injunction granted by the Trial Court. The\n\napplication for interim injunction filed by the plaintiff and the application\n\nfiled by the defendant No. 9 for vacation of the ad-interim ex-parte\n\ninjunction was considered by the Trial Court and vide its order dated 27 th\n\nApril, 2023, a consent order was passed, whereby plaintiff Mohammad\n\nAhsan Rather and defendant No. 9-Syed Abdul Hamid Shah were both\n\npermitted to operate the bank accounts jointly, maintained by the Jammu and\n\nKashmir Yateem Foundation/Trust for meeting out day-to-day expenses of\n\nthe said Trust/ Foundation. Consequently, the application for interim relief\n\nfiled by the plaintiff along with his suit was finally disposed of.05.           It seems that on the very next day i.e., on 28th April, 2023, the\n\nplaintiff filed an application seeking to keep order dated 27th April, 2023, in\n\nabeyance till further orders or for modification of the order dated 27th April,\n\n2023, so as to allow the plaintiff alone to operate the bank accounts.\n\nInterestingly, the Trial Court not only entertained the application but without\n\nputting the defendants in particular the defendant No. 9 on notice, passed an\n\nex parte order dated 28th April, 2023, permitting the plaintiff alone to\n\noperate the bank accounts opened at different branches of the Jammu and\n\nKashmir Bank, thus modifying its earlier order dated 27th April, 2023. This\n\nex parte order of the Trial Court dated 28th April, 2023, was called into\n\nquestion by the defendant No. 9 ("the appellant herein") before this Court inPage 3 of 8                                             FAO No. 36/2023CM(M) No. 91/2023 filed purportedly underArticle 227of the Constitution\n\nof India.06.           This Court allowed the petition vide its order dated 15 th May,\n\n2023, and set aside the order dated 28th April, 2023, passed by the Trial\n\nCourt on the ground that the same had been passed at the back of the\n\ndefendant No. 9. A direction was issued to the Trial Court to decide the\n\napplication of the plaintiff afresh after affording reasonable opportunity of\n\nbeing heard to the petitioner. Seven days' time was granted to the Trial\n\nCourt to dispose of the application. This is how the matter once again landed\n\nbefore the Trial Court for consideration.07.           The Trial Court vide its order impugned in this appeal decided\n\nthe application of the plaintiff for interim relief as also the application\n\nsubmitted by the defendant No. 9 for seeking its vacation afresh without first\n\ndeciding the application made by the plaintiff seeking to keep order dated\n\n27th April, 2023, in abeyance, and made the ad interim ex parte order issued\n\nby the Trial Court on 27th December, 2021, absolute till conclusion of the\n\nTrial. It is this order of the Trial Court dated 12th September, 2023, which is\n\ncalled in question in this appeal.08.            Mr. G.A. Lone, learned counsel appearing on behalf of the\n\nappellant submits that the impugned order is not sustainable in law, in that\n\nthe Trial Court has not considered the application moved by the plaintiff\n\nseeking to keep in abeyance the order dated 27th April, 2023. He submits\n\nthat the Trial Court erroneously disposed of the application for interim relief\n\nonce again being ignorant of the fact that the aforesaid application already\n\nstood disposed of by the Trial Court vide order dated 27 th April, 2023. It is\n\nargued by Mr. G.A. Lone, learned counsel for the appellant that the TrialPage 4 of 8                                           FAO No. 36/2023Court could not have reconsidered the application for interim relief filed by\n\nthe plaintiff underOrder 39 Rule 1 CPCwithout first dealing with order\n\ndated 27th April, 2023, whereby the said application stood finally disposed\n\nof.09.           Per contra, Mr. Z.A. Qureshi, learned senior counsel appearing\n\non behalf of the plaintiff (respondent No. 1 herein) submits that in terms of\n\nthe order impugned, the Trial Court has disposed of all the applications. He\n\nfurther submits that from the reading of the order impugned it would clearly\n\ntranspire that the appellant had not objected to the consideration of interim\n\nrelief application afresh and it is because of this reason only that the learned\n\ncounsel appearing for the appellant addressed arguments on the merits of the\n\napplication for interim relief.10.           Having heard learned counsel for the parties and perused the\n\nmaterial on record, I am of the considered opinion that the Trial Court has\n\nnot carried out the mandate of the directions passed by this Court in its order\n\ndated 15th May, 2023, passed in CM(M) No. 91/2023. From reading of the\n\noperative para of the judgment i.e., Para 5, it clearly transpires that the writ\n\npetition was disposed of with a clear direction to the Trial Court to decide\n\nthe application i.e., application moved by the plaintiff for keeping in\n\nabeyance the order dated 27th April, 2023, afresh after affording reasonable\n\nopportunity of being heard to the petitioner herein. The Trial Court did not\n\nconsider the application of the plaintiff for seeking virtually the recall of the\n\norder dated 27th April, 2023, and instead embarked upon reconsideration of\n\nthe application of the plaintiff filed underOrder 39 Rule 1 CPCfor grant of\n\ninterim relief, ignoring the fact that the said application stood finally\n\ndisposed of vide order dated 27th April, 2023. So long as the order dated 27thPage 5 of 8                                            FAO No. 36/2023April, 2023, is intact, the application for interim relief which stood already\n\ndisposed of cannot be reconsidered. The Trial Court should have first\n\nadverted to the application of the plaintiff for seeking a recall of the order\n\ndated 27th April, 2023. It was only after the Trial Court would agree with the\n\nplaintiff and withdraw the order dated 27th April, 2023, the application for\n\ninterim relief could have been decided afresh on merits.11.           Needless to say that the order dated 27th April, 2023, was a\n\nconsent order and a heavy burden was on the plaintiff to show that the\n\nconsent was obtained by fraud or was the result of a bonafide mistake of\n\nfact. It was again for the plaintiff to come up and show that the person who\n\nconsented before the Court for passing of the order dated 27 th April, 2023,\n\nwas not the person authorized by the Foundation/Trust to make such\n\nconcession. It is only after considering the application on the grounds taken\n\ntherein and in the light of objections raised thereto by the defendant No 9, an\n\nappropriate order in this regard could have been passed.12.           From reading of the entire order impugned in this appeal, it is not\n\nforthcoming that this aspect of the matter was adverted to by the Trial Court\n\nat any stage. It seems that the Court presumed that the order dated 27th\n\nApril, 2023, has gone with the passing of the order dated 15 th May, 2023, by\n\nthis Court and it is called upon to reconsider the interim application on\n\nmerits. There was thus inherent fallacy in understanding the issue and the\n\nimport of the directions issued by this Court vide order dated 15 th May,\n\n2023.13.           The Trial Court commences his order by saying that he is going\n\nto dispose of two applications one filed by the plaintiff for grant of ad-\n\ninterim relief and the other application filed by the defendant No. 9 for itsPage 6 of 8                                             FAO No. 36/2023vacation. After wrapping up the submissions of learned counsel for the\n\nparties, the Trial Court in Para 29 makes its intention manifest that it was\n\nseized of the application for grant of ad-interim relief filed by the plaintiff\n\nand an application filed by the defendant No. 9 for vacation of the interim\n\norder dated 27th December, 2021. It is true that in Paragraph 26, the Trial\n\nCourt has shown its awareness about the orders passed on 27th April, 2023,\n\nand 28th April, 2023, but does not deal with the aforesaid orders in the light\n\nof application filed by the plaintiff. Order dated 27 th April, 2023, is neither\n\nheld bad in law nor recalled by the Trial Court.14.           In view of the aforesaid position, it was not available to the Trial\n\nCourt to consider the application for interim relief filed by the plaintiff,\n\nwhich stood finally disposed of vide order dated 27th April, 2023. The plea\n\nof the senior counsel appearing on behalf of the plaintiff that the\n\nparticipation of the Defendant No. 9 in the arguments addressed on the\n\napplication for interim relief obviates the necessity of dealing with order\n\ndated 27th April, 2023, is not correct in law and cannot be accepted. On\n\nbeing asked by the Trial Court, the counsel for the defendant No. 9 may\n\nhave addressed arguments on merits in respect of interim relief, but the fact\n\nremains that mere participation of the counsel for the defendant No. 9 in the\n\narguments does not automatically tantamounts to recall of the order dated\n\n27th April, 2023. This Court would have appreciated had the Trial Court\n\nrecorded such consent, if any, given by the defendant No. 9 and formally\n\nrecalled the order dated 27th April, 2023, and then considered the application\n\nfor interim relief. This has not happened in this case. The position in the\n\nrecord as on date is that the order dated 27th April, 2023, is intact, meaning\n\nthereby that the application for interim relief is finally disposed of. ThePage 7 of 8                                              FAO No. 36/2023impugned order has thus decided the disposed of applications yet again,\n\nwhich is not permissible in law.15.            For the foregoing reasons, I find merit in this appeal and the\n\nsame is accordingly allowed. The impugned order dated 12th September,\n\n2023, passed by the Trial Court is set aside. The matter is remanded back to\n\nthe Trial Court to proceed in the following manner:-a.   To decide the application of the plaintiff seeking to keep in\n                   abeyance the order dated 27th April, 2023, in the light of\n                   directions passed by this Court on 15th May, 2023, in\n                   CM(M) No. 91/2023.b.   Should the Trial Court accept the application of the plaintiff\n                   and recalls the order dated 27th April, 2023, on merits, of\n                   course, after affording reasonable opportunity of being\n                   heard to the defendant No. 9, it may proceed to decide the\n                   application for interim relief afresh.16.           The appeal is accordingly disposed of along with connected\nCM(s).(SANJEEV KUMAR)\n                                                            JUDGE\nSRINAGAR:.12.2023\n"Mir Arif"i.    Whether the judgment is reportable?   Yes\n                         ii.    Whether the judgment is speaking?     YesPage 8 of 8                                                 FAO No. 36/2023