Gulam Ahmad Raina And Anr vs Mst. Hameeda Akhtar And Ors on 6 March, 2026

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    Jammu & Kashmir High Court – Srinagar Bench

    Gulam Ahmad Raina And Anr vs Mst. Hameeda Akhtar And Ors on 6 March, 2026

    Author: Rahul Bharti

    Bench: Rahul Bharti

                                                                             06
                                                                             Regular
    
    
    
                      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                      AT SRINAGAR
                                 RSA 12/2021 CM(2128/2025)
                  CM(2130/2025) CM(3892/2025) CM(1985/2023) CM(2131/2025)
                         CM(1368/2025) CM(5997/2021) CM(2129/2025
                                                    c/w
                                 i)RSA 11/2021 CM(2135/2025) CM(5994/2021)
                          CM(1367/2025) CM(2134/2025) CM(3891/2025) CM(2136/2025)
                                CM(1527/2023) CM(2133/2025) CM(5995/2021)
    
                   Gulam Ahmad Raina And Anr.
                                                              ...Applicant(s)/Appellant(s)
                        Through:     Mr. Sheikh Hilal, Advocate with
                                     Ms. Shaziya Kamal, Advocate.
    
                                                    VERSUS
                   Mst. Hameeda Akhtar And Ors.
                                                                           ...Respondent(s)
                        Through:     Mr. Altaf Haqani, Senior Advocate with
                                     Ms. Mubeena, Advocate.
    
             CORAM:
                        HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE.
                                               ORDER
    

    06.03.2026

    RSA Nos. 11/2021 and 12/2021:

    SPONSORED

    01. A Civil Suit on File No. 54/N of 2011 came to be commenced by four

    plaintiffs namely- Gulam Ahmad Raina, Muhammad Ismayil Raina,

    Mohammad Sidiq Raina and Mohammad Aslam Raina on 31.10.2011

    before the Court of Sub Judge, Chadoora.

    02. In said civil suit, the four plaintiffs named three defendants namely- Dr.

    Gh. Mohammad Raina, Hameeda Raina and Mehmooda Raina.

    03. The civil suit on File No. 54/N of 2011 was for permanent prohibitory

    injunction and declaration.

    04. Soon after the aforesaid suit, out of the four plaintiffs, two plaintiffs

    namely Gulam Ahmad Raina and Muhammad Ismayil Raina came forward

    with another suit on File No. 205/N of 2011.

    05. In said second civil suit, there were eight defendants with defendants No.

    1, 2 and 8 being private defendants namely Hameeda Akhtar, Mehmooda

    Raina and Gh. Mohammad Raina, whereas the defendants No. 3 to 7

    were Revenue Establishment officials.

    06. Both civil suits came to be disposed of by a common judgment dated

    31.05.2016 by the Court of Sub Judge, Chadoora resulting in disposal on

    the basis of a purported compromise which was accorded entry into the

    decree dated 31.05.2016.

    07. Against aforesaid compromise decree dated 31.05.2016, two civil first

    appeals under Section 96 of the Jammu and Kashmir Code of Civil

    Procedure, Svt., 1977 (1920 A. D.) came to be preferred.

    08. Both civil first appeals were filed by the common appellants namely

    Gulam Ahmad Raina and Muhammad Ismayil Raina.

    09. Both appeals on File Nos. 22/A and 31/A came to be on the file of the

    Additional District Judge, Budgam which, by virtue of a separate

    judgment dated 19.05.2021, came to dispose of said two appeals by

    dismissing them against the plaintiffs/appellants and upholding the

    compromise decree of the Court of Sub Judge, Chadoora.

    10. Against the aforesaid outcome in the form of judgment dated 19.05.2021

    passed separately on said two civil first appeal files, the two appellants

    came forward with respective civil second appeal before this Court.

    11. In the present appeal- RSA No. 11/2021 filed on 08.09.2021, the

    appellant No. 2- Muhammad Ismayil Raina expired on 06.06.2022.

    12. However the appeal came to suffer dismissal for non-prosecution in

    terms of an order dated 13.10.2023.

    13. Through an application- CM No. 7027/2023, appellant No. 1- Gulam

    Ahmad Raina came forward seeking restoration of said Civil Second

    Appeal.

    14. Before the dismissal for non-prosecution took place in terms of order

    dated 13.10.2023, the fact of death of appellant No. 2- Muhammad

    Ismayil Raina had already been taken on record of this case by this Court

    in terms of an order dated 28.02.2023.

    15. Restoration of the appeal was expressly sought only by appellant No. 1-

    Gulam Ahmad Raina without being conjoined by the legal representatives

    of the deceased appellant No. 2- Muhammad Ismayil Raina, and, thus, to

    that extent the restoration of appeal came to take place only with respect

    to appellant No. 1 and that is how the present state of proceedings in the

    appeal is obtaining while engaging this Court in an issue as to whether

    on account of the death of the appellant No. 2 and non-impleadment

    of his legal representatives, Civil Second appeal stood abated upon

    expiry of limitation period prescribed for bringing on record the legal

    representatives of the deceased appellant or whether the right to

    pursue the appeal survives in favour of appellant No. 1 to continue

    with the Civil Second Appeal in his own name and claim

    notwithstanding the demise of the appellant No. 2.

    16. Order 22 rule 11 of the Jammu and Kashmir Code of Civil Procedure,

    Svt., 1977 (1920 A. D.) makes the provisions of Order 22 fully applicable

    even with respect to appeals, be it with civil first appeal or civil second

    appeal.

    17. The legal representatives of the deceased appellant No. 2- Muhammad

    Ismayil Raina have not come forward seeking their impleadment to

    substitute the deceased appellant No. 2 so as to carry forward the civil
    second appeal from the perspective of the deceased appellant No. 2 to its

    logical end.

    18. An application – CM No. 2136/2025 has been preferred by the legal

    representatives/heirs of the deceased appellant No. 2, for bringing them

    on record.

    19. The appellant No. 1 as being the surviving appellant has not come

    forward with any take on the situation by reference to the death of the co-

    appellant No. 2.

    20. The appellant No. 1 and the deceased appellant No. 2 are real brothers

    and as such the appellant No. 1 all along was knowing the fact that the

    legal heirs of the appellant No. 2 needed to be informed about the fact that

    they should join the appellant No. 1 not only in getting the dismissed

    appeal restored but also in getting the legal representatives impleaded in

    place of the appellant No. 2.

    21. The legal representatives of the deceased appellant No. 2 by virtue of

    application- CM No. 2133/2025 filed on 03.04.2025 are seeking

    condonation of delay for maintaining the application – CM No.

    2136/2025 for setting aside the abatement as well as for bringing

    themselves on record as legal representatives.

    22. This Court is not convinced that the reasoning being cited by the legal

    representatives of deceased appellant No. 2, is factually correct in view of

    the fact that appellant No. 1 was all along privy to the fact that the

    appellant No. 2 had died and that his legal heirs/representatives needed

    to be informed for taking measures for coming on record as legal

    representatives.

    23. Even at the time of filing application- CM No. 7027/2023 for restoration,

    the legal representatives of the deceased appellant No. 2 were not joining
    the appellant No. 1 nor appellant No. 1 had stated anything in his

    application regarding the non-joining of the legal representatives/heirs of

    the deceased appellant No. 2 meaning thereby that the objective was to be

    to protract the pendency of the appeal.

    24. In fact, in order dated 13.09.2021, this Court is already on record to say

    that after going through the file, this Court had formed a prima facie view

    to dismiss the appeal and that co-relates with the fact of the litigation

    being protracted.

    25. Therefore, this Court dismisses applications- CM No. 2135/2025 and

    2136/2025 leaving it only for appellant No. 1 to be the sole appellant so

    far as appeal is concerned subject to determination of the point as to

    whether the appellant No. 1 can pursue the appeal alone for which the

    contesting respondents have taken an exception that the appeal has to

    stand abated in its entirety.

    26. List for consideration on 25th March, 2026.

    (RAHUL BHARTI)
    JUDGE

    SRINAGAR
    06.03.2026
    Bisma Jan.



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