It is deemed that sufficient notice of the listing of the case and the hearing is given if there is sufficient compliance with the requirements of Order 39 Rule 4 CPC : Jammu and Kashmir High Court
Once procession is taken after the acquisition proceedings stood concluded and the final award passed, the court will not interfere in the decision. This was held in the judgment passed by a two- judge bench comprising of HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR and HON’BLE MRS. JUSTICE SINDHU SHARMA, in the matter sufficient compliance with the requirements of Order 39 Rule 4 CPC V. Union Territory of J&amp;K &amp;Ors. [CMAM No. 52/2010], dealt with an issue where the petitioner filed a petition challenging the judgment and order for construction of the All India Medical Institute at Awantipora. Counsel for the appellants urged that the judgment and order impugned was passed without hearing the appellants. It was stated that the writ petition was listed on 30th of December, 2019, but the Bench collapsed due to non-availability of the Hon’ble Judge due to some unavoidable circumstances. It was urged that the Registrar Judicial of the Srinagar Wing of the High Court, accordingly, on the same day, notified that the cases would not be taken up by the said Bench. It was stated that the counsel for the petitioners-appellants, on coming to know that the Hon’ble Judge would not be holding the Court, was under a bona fide belief that the cases would be adjourned in the normal course and, therefore, was not personally present when the case was taken up by a Coordinate Bench upon a request having been made by the Counsel for the respondents on the same date. A lot of emphasis was laid by the counsel for the respondents that the entire process of acquisition had since been completed before the filing of the writ petition and, therefore, according to latest Apex Court judgments, the Courts would not interfere in the acquisition matters which had attained finality by passing of the award as also by delivery of possession. It was, therefore, urged that notwithstanding the fact that the counsel for the petitioners was not present, the outcome of the writ petition would, however, remain unchanged. The issue that arises for consideration is as to whether counsel for the appellants had sufficient notice in terms of provisions of Order 39 Rule 4 of CPC before the Writ Court could modify the order. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that In the court’s opinion, counsel for the appellants, therefore, must be deemed to have sufficient notice of the listing of the case and the hearing therein, especially in view of the fact that the objections had been filed by the respondents to the writ petition. In our opinion, there was sufficient compliance with the requirements of Order 39 Rule 4 CPC in the present case. Click here to view judgement Judgement reviewed by – Vaishnavi Raman
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Reserved on:19.02.2020 Pronounced on:23.06.20202 LPA No.21 2020 CM No.501 2010 Manzoor Ahmad Bhat & Ors. ... Appellant(s) Through: Mr. J. H. Reshi Advocate. Union Territory of J&K &Ors. …Respondent(s) Through: Mr. N. H. Shah Sr. AAG with Mr. Shah Aamir AAG. HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR HON’BLE MRS. JUSTICE SINDHU SHARMA JUDGE Per Thakur ‘J’ The present Letters Patent Appeal has been preferred against the judgment and order dated 30th of December 2019 whereby interim direction dated 16.10.2018 has been modified. The Writ Court had earlier vide order dated 16.10.2018 while issuing notice in the writ petition stayed the acquisition proceedings initiated vide Notification No.11 of 2016 dated 30.08.2019 for construction of the All India Medical Institute at Awantipora. Counsel for the appellants urged that the judgment and order impugned was passed without hearing the appellants. It was stated that 2 LPA No.21 2020 the writ petition was listed on 30th of December 2019 but the Bench collapsed due to non availability of the Hon’ble Judge due to some unavoidable circumstances. It was urged that the Registrar Judicial of the Srinagar Wing of the High Court accordingly on the same day i.e. 30.12.2019 notified that the cases would not be taken up by the said Bench. It was stated that the counsel for the petitioners appellants on coming to know that the Hon’ble Judge would not be holding the Court was under a bona fide belief that the cases would be adjourned in the normal course and therefore was not personally present when the case was taken up by a Coordinate Bench upon a request having been made by the Counsel for the respondents on the same date i.e. 30th of December 2019. It was urged by the learned counsel for the petitioners that the petitioners were entitled to a detailed hearing inasmuch as the petitioners had challenged the process of acquisition initiated by the respondents which was otherwise illegal and contrary to the provisions of Land Acquisition Act. On a perusal of the cause list as also notice dated 30th December 2019 issued by Registrar Judicial of the Srinagar wing of the High Court it can be seen that the cases listed before the Court on 30th of December 2019 on account of non availability of the Hon’ble Judge could be mentioned before the Coordinate Bench. It appears that the counsel for the respondents made a mention before the Coordinate Bench to take up the matter which was otherwise 3 LPA No.21 2020 listed in the regular cause list and the matter was taken in absence of counsel for the petitioners and the interim order dated 16.10.2018 modified on the same date i.e. 30.12.2019. It was urged that the Writ Court could not have modified the order issued on 16.10.2018 without giving notice to the opposite party. It was urged that the order impugned was in violation of Order 39 Rule 4 of the Code of Civil Procedure. For facility of reference Order 39 Rule 4 is reproduced herein below: “4. Order for injunction may be discharged varied or set aside.—Any order for an injunction may be discharged or varied or set aside by the Court on application made thereto by any party dissatisfied with such order: Provided that if in an application for temporary injunction or in any affidavit supporting such application a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party the Court shall vacate the injunction unless for reasons to be recorded it considers that it is not necessary so to do in the interest of justice: Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard the order shall not be discharged varied or set aside on the application of that party except where such discharge variation or setting aside has been necessitated by a change in the circumstances or unless the Court is satisfied that the order has caused undue hardships to that party.” A lot of emphasis was laid by the counsel for the respondents that the entire process of acquisition had since been completed before the filing of the writ petition and therefore according to latest Apex Court judgments the Courts would not interfere in the acquisition matters which had attained finality by passing of the award as also by delivery of possession. It was therefore urged that notwithstanding the 4 LPA No.21 2020 fact that the counsel for the petitioners was not present the outcome of the writ petition would however remain unchanged. 7) We have heard learned counsel for the parties. The issue that arises for consideration is as to whether counsel for the appellants had sufficient notice in terms of provisions of Order 39 Rule 4 of CPC before the Writ Court could modify the order dated Admittedly the matter was listed in the cause list on 30th of December 2019 which has to be read with the notice issued by the Registrar Judicial on the same date informing the petitioners appellants that the matter could be mentioned before the Coordinate Bench for being taken up. The counsel for the appellants therefore knew well that the matter could have been taken up by the Bench which was available as was notified in the notice of the Registrar Judicial. In our opinion counsel for the appellants therefore must be deemed to have sufficient notice of the listing of the case and the hearing therein especially in view of the fact that the objections had been filed by the respondents to the writ petition. In our opinion there was sufficient compliance with the requirements of Order 39 Rule 4 CPC in the present case. 10) The second issued that requires consideration is whether the Writ Court was justified in exercising its power to modify the order earlier granted on 16.10.2018 or not. 5 LPA No.21 2020 11) Admittedly by virtue of order dated 16.10.2018 the Writ Court while issuing notice in the writ petition filed by the appellants had stayed the acquisition proceedings initiated by respondents for construction of All India Medical Institute at Awantipora. Considering the importance of the purpose for which the acquisition was being initiated the Writ Court deemed it appropriate to vacate the order. We are told that the acquisition proceedings stood concluded and the final award passed. Not only this even the possession had been taken over by the Medical Education Department. If that be so in our opinion there was enough justification for the Writ Court to modify the order. 12) For whatever has been stated above we find no merit in the present appeal which is accordingly dismissed. THAKUR) JUDGE (DHIRAJ JUDGE “Bhat Altaf PS” Whether the order is speaking: Yes No Whether the order is reportable: Yes No 