Trial Court Should Avoid Giving Observations On Merits Of Case At Stage Of Interim Application: Jammu & Kashmir And Ladakh High Court

While setting aside an order passed by the trial court, the High Court of Jammu & Kashmir observed that by making observations on the merits of the suit, the trial court had virtually dismissed the suit under the guise of dismissing the application for interim relief, leaving nothing in the suit for determination.Justice Javed Iqbal Wani set aside the order passed by the trial court dismissing the application filed by the appellant. The court also observed that merely stating that concealment was of a material fact would not absolve the trial court of its duty the law puts on it. The appellant, a displaced Kashmiri Pandit, purchased a 10-marla plot and applied for building permission to construct a residential house under Section 238(6) of the Cantonments Act, 2006.The Cantonment Board neither granted nor denied the application. After waiting for the statutory period, the appellant began construction. However, when the construction reached the plinth level, Cantonment Board officials stopped the work, leading to the filing of a civil suit before the trial court.The trial court dismissed the interim relief application and imposed a ₹5,000 cost, citing that the appellant had concealed the fact of a prior suit.The appellant argued that the withdrawal of the first suit was believed to be approved once the application to that effect was made before the trial court and that no formal order was issued by the trial court for reference. It was further contended that Section 238(6) of the Cantonments Act, 2006, grants deemed permission once the statutory period lapses and that the trial court erred in deciding that the "returning of the application after the statutory period of six months negated deemed permission," thereby prematurely deciding substantive issues at the interim stage rather than allowing full evidence to be presented.The respondent argued that the appellant had intentionally concealed the fact of the earlier suit, amounting to material concealment and that the deemed permission was invalidated as the application was formally returned on January 5, 2023.The High Court found that the appellant had not intentionally concealed the fact of the earlier suit and that the failure to mention a previous suit is not fatal unless done intentionally to mislead the court. It also underlined that only the concealment of facts that are fatal to the second suit constitutes material concealment. Even if such concealment were the case, the trial court neither dismissed the second suit nor stayed it under Section 10 CPC but instead proceeded with the main suit after passing the impugned order. This clearly indicated that the trial court itself was unsure whether the first suit was fatal to the second suit, presumably because the entire record of the first suit was not available before it.Accordingly, the High Court set aside the trial court's order, reinstated the interim relief application, and acknowledged the appellant's bona fide conduct.AppearanceAppellants through Adv. Hakim suhail ishtiyaqRespondent through Advocate Muzzafar ahmad dar,T.M. Shamsi, DSGI Faizan Ahmad Ganie, CGSCCase title: Rathika Pruthi vs Contonment Board (Badami bagh) thr. Chief Executive OfficerCitation: 2025 LiveLaw (JKL) 19Click Here To Read Order

Trial Court Should Avoid Giving Observations On Merits Of Case At Stage Of Interim Application: Jammu & Kashmir And Ladakh High Court

Aleem Syeed

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