Jammu & Kashmir High Court – Srinagar Bench
Ghulam Nabi Ganie vs Abdul Rashid Ganie And Anr on 29 July, 2026
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Serial No. 16
Regular Cause list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM(M) 163/2025 CM 2455/2025
Caveat 730/2025
GHULAM NABI GANIE ...Appellant(s)/Petitioner(s)
Through: Mr. Aabid Mushtaq, Advocate
Vs.
ABDUL RASHID GANIE AND ANR.
...Respondent(s)
Through: Mr. Dar Khursheed, Advocate
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE.
ORDER
29.07.2026
1. By this petition, filed in terms of Article 227 of the Constitution of India,
the petitioner herein is seeking quashing of the orders dated 18.05.2024
and 18.03.2025 passed by learned Munsiff Chadoora [for short to be
referred as „trial court‟] and learned Principal District Judge, Budgam [for
short to be referred as „appellate court‟] respectively, in a suit and civil
miscellaneous appeal titled “Ghulam Nabi Ganie Vs. Abdul Rashid Ganie
& Anr.”, whereby the trial court has vacated the interim relief, which the
appellate court has subsequently upheld.
2. Briefly stated, the case projected before this court by the petitioner is that
a suit for declaration and injunction has been filed by the petitioner before
the trial court to the effect that plaintiff be declared as owner, possessor
and title holder of land measuring 1 Kanal & 18 Marlas falling under
Khasra No. 4178 & 4180 situated at village Chattergam Tehsil B.K. Pora
District Budgam, which had fallen to his share pursuant to a settlement
arrived at between the plaintiff and defendants, following the demise of
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their father. Out of the said suit land, 6 Marlas of land are being utilized as
a pathway for the plaintiff, who is positioned at the front side of the suit
land, and the defendants, at the rear end.
3. It has been stated by the petitioner in the suit before the trial court that
these 06 Marlas, which are being utilized as common pathway by the
plaintiff and the defendants, is actually in exclusive ownership of the
plaintiff and its usage by the defendants would be subject to providing an
alternate pathway to the plaintiff for land falling under Khasra No. 4403,
situated at Mouza Chattergam by the defendants.
4. The court upon consideration of the matter, while issuing notice to the
other side restrained the non-applicants/respondents herein temporarily
from making or causing any cause of interference over the suit property
mentioned in the plaint. The court also gave liberty to the respondents
herein to move a motion for addition, alteration, reversal or modification
of the order.
5. The respondents, upon notice, appeared before the trial court and
submitted the written statement as also the application for vacation of the
interim relief order dated 15.12.2023.
6. The trial court after considering the entire material placed on record by
both the parties, disposed of the interim relief application filed by the
petitioner herein by vacating the interim order dated 15.12.2023, in terms
of the impugned order dated 18.05.2024.
7. Aggrieved of the order dated 18.05.2024, the petitioner filed an appeal
against the same before the appellate court, and the appellate court upon
consideration of the matter dismissed the appeal in terms of order dated
CM(M) 163/2025 Page 2 of 8
18.03.2025 by holding that there is no perversity or illegality in the order
of the trial court.
8. The petitioner has now challenged both the orders before this court in
terms of the Article 227 of the Constitution of India.
9. Heard learned counsel for the parties, considered the submissions made
and perused the record of the trial court, as also of the appellate court.
10.It appears that the trial court, based on the material made available by the
plaintiff at the time of issuance of notice to the respondents, had found
that the three cardinal principles governing the grant of ad-interim relief
viz prima facie case, balance of convenience, irreparable loss/injury were
in favour of the plaintiff and had thus granted the interim relief in favour
of the petitioner herein by temporarily retraining the defendants from
interfering with the suit property, in terms of order dated 15.12.2023,
however, with the appearance of respondents, the court had the advantage
of having the stand of the other side also in consideration whereof, the
trial court did not find the two principles viz balance of convenience and
irreparable loss favouring the petitioner but were in fact held to be in
favour of the defendants and accordingly vacated the interim relief in
terms of order dated 18.05.2024.
11.The findings returned by the trial court were not found to be perverse by
the appellate court upon being challenged before it by the petitioner,
therefore, the appeal preferred by the petitioner also got dismissed.
12.The petitioner is primarily challenging the impugned orders on the count
that the said orders have been passed de-hors the law; the trial court
CM(M) 163/2025 Page 3 of 8
exceeded its jurisdiction by granting a relief in favour of the respondents,
which had not been even prayed for.
13.Learned counsel for the petitioner, during the course of arguments,
submitted that the trial court exceeded its jurisdiction, therefore
committed an illegality, by directing for removing the tin sheets of the
petitioner from the alleged pathway, something not prayed for by the
respondents in their application. The learned counsel for the petitioner
further submits that this aspect of the matter was brought to the notice of
the appellate court, who failed to appreciate the same, thus the order
passed by the appellate court also suffers from non-application of mind,
therefore, deserves to be set aside.
14.On the contrary, the learned counsel for the respondents submits that there
is no illegality or perversity attached with the impugned orders of the trial
and the appellate court, the same have been passed on the sound principles
of law.
15.At the very outset, it needs to be emphasized that the jurisdiction vested
with this court in terms of Article 227 of the Constitution of India is not to
be exercised randomly. The court in this regard is guided by the ratio laid
down by Hon‟ble Apex Court, in case titled “Shalini Shyam Shetty & Anr
Vs Rajendra Shankar Patil” reported as (2010) 8 SCC 329. The relevant
paragraph of the said judgment is reproduced herein below:
62. On an analysis of the aforesaid decisions of this Court, the
following principles on the exercise of High Court’s jurisdiction
under Article 227 of the Constitution may be formulated:
a. A petition under Article 226 of the Constitution is different
from a petition under Article 227. The mode of exercise of
power by High Court under these two Articles is also different.
CM(M) 163/2025 Page 4 of 8
b. In any event, a petition under Article 227 cannot be called a
writ petition. The history of the conferment of writ jurisdiction
on High Courts is substantially different from the history of
conferment of the power of Superintendence on the High
Courts under Article 227 and have been discussed above.
c. High Courts cannot, on the drop of a hat, in exercise of its
power of superintendence under Article 227 of the
Constitution, interfere with the orders of tribunals or Courts
inferior to it. Nor can it, in exercise of this power, act as a
Court of appeal over the orders of Court or tribunal
subordinate to it. In cases where an alternative statutory mode
of redressal has been provided, that would also operate as a
restrain on the exercise of this power by the High Court.
d. The parameters of interference by High Courts in exercise of
its power of superintendence have been repeatedly laid down
by this Court. In this regard the High Court must be guided by
the principles laid down by the Constitution Bench of this
Court in Waryam Singh (supra) and the principles in Waryam
Singh (supra) have been repeatedly followed by subsequent
Constitution Benches and various other decisions of this
Court.
e. According to the ratio in Waryam Singh (supra), followed in
subsequent cases, the High Court in exercise of its jurisdiction
of superintendence can interfere in order only to keep the
tribunals and Courts subordinate to it, `within the bounds of
their authority’.
f. In order to ensure that law is followed by such tribunals and
Courts by exercising jurisdiction which is vested in them and
by not declining to exercise the jurisdiction which is vested in
them.
g. Apart from the situations pointed in (e) and (f), High Court
can interfere in exercise of its power of superintendence when
there has been a patent perversity in the orders of tribunals
and Courts subordinate to it or where there has been a gross
and manifest failure of justice or the basic principles of
natural justice have been flouted.
h. In exercise of its power of superintendence High Court cannot
interfere to correct mere errors of law or fact or just because
another view than the one taken by the tribunals or Courts
subordinate to it, is a possible view. In other words the
jurisdiction has to be very sparingly exercised.
i. High Court’s power of superintendence under Article
227 cannot be curtailed by any statute. It has been declared aCM(M) 163/2025 Page 5 of 8
part of the basic structure of the Constitution by the
Constitution Bench of this Court in the case of L. Chandra
Kumar vs. Union of India & others, reported in (1997) 3 SCC
261 and therefore abridgement by a Constitutional
amendment is also very doubtful.
j. It may be true that a statutory amendment of a rather cognate
provision, like Section 115 of the Civil Procedure Code by
the Civil Procedure Code (Amendment) Act, 1999 does not
and cannot cut down the ambit of High Court’s power
under Article 227. At the same time, it must be remembered
that such statutory amendment does not correspondingly
expand the High Court’s jurisdiction of superintendence
under Article 227.
k. The power is discretionary and has to be exercised on
equitable principle. In an appropriate case, the power can be
exercised suo motu.
l. On a proper appreciation of the wide and unfettered power of
the High Court under Article 227, it transpires that the main
object of this Article is to keep strict administrative and
judicial control by the High Court on the administration of
justice within its territory.
m. The object of superintendence, both administrative and
judicial, is to maintain efficiency, smooth and orderly
functioning of the entire machinery of justice in such a way as
it does not bring it into any disrepute. The power of
interference under this Article is to be kept to the minimum to
ensure that the wheel of justice does not come to a halt and the
fountain of justice remains pure and unpolluted in order to
maintain public confidence in the functioning of the tribunals
and Courts subordinate to High Court.
n. This reserve and exceptional power of judicial intervention is
not to be exercised just for grant of relief in individual cases
but should be directed for promotion of public confidence in
the administration of justice in the larger public interest
whereas Article 226 is meant for protection of individual
grievance. Therefore, the power under Article 227 may be
unfettered but its exercise is subject to high degree of judicial
discipline pointed out above.
o. An improper and a frequent exercise of this power will be
counter-productive and will divest this extraordinary power of
its strength and vitality.
CM(M) 163/2025 Page 6 of 8
16.The above referred law would make it explicit that the petition in hand is
not maintainable, however, the court deems it appropriate to deal with the
merits of the case, notwithstanding the maintainability.
17.The factual aspect that has not been adverted to by the petitioner is that
the police concerned had been directed by the trial court to remove the tin
sheets from the alleged pathway only on the application of the
respondents seeking implementation of the order dated 18.05.2024, by
virtue of which the interim relief had been vacated and not in the
impugned order itself. The contention of the learned counsel for the
petitioner that the trial court exceeded its jurisdiction by granting a relief
not prayed for by the respondents is thus out of place, as the court has in
fact granted such relief on the application moved by the respondents
before the trial court seeking implementation of the order and removal of
the tin sheets from the alleged pathway. This, in itself, is sufficient to
shake the foundation of the case of the petitioner, however, a little
elaboration, in respect of the manner in which the applications for grant of
interim injunctions are required to be dealt with, deserves to be jotted
down.
18.The contention of the learned counsel for the petitioner that the trial court
had recorded in the impugned order that there exists a prima facie case
and yet vacated the interim relief is a perversity, is noted to be rejected
only, as the law on the point is well settled that a mere existence of the
prima facie case does not in itself mean that the interim injunction is
necessarily required to be passed in absence of the other two principles
governing the subject. I am fortified in my view by the judgment of the
CM(M) 163/2025 Page 7 of 8
Hon‟ble Apex Court delivered in case titled “Best Sellers Retail (India)
Pvt. Ltd. Vs. Aditya Birla Nuvo Ltd.” reported as (2012) 6 SCC 792, the
relevant paragraphs of which are taken note of herein below.
29. Yet, the settled principle of law is that even where prima
facie case is in favour of the plaintiff, the Court will refuse
temporary injunction if the injury suffered by the plaintiff on
account of refusal of temporary injunction was not irreparable.
30. In Dalpat Kumar & Anr. v. Prahlad Singh &
Ors. [(1992) 1 SCC 719] this Court held:
“5. …. Satisfaction that there is a prima facie case by itself
is not sufficient to grant injunction. The Court further has to
satisfy that non-interference by the Court would result in
“irreparable injury” to the party seeking relief and that
there is no other remedy available to the party except one to
grant injunction and he needs protection from the
consequences of apprehended injury or dispossession.
Irreparable injury, however, does not mean that there must
be no physical possibility of repairing the injury, but means
only that the injury must be a material one, namely, one that
cannot be adequately compensated by way of damages.”
19. Having regard to what has been stated herein before, the instant petition
is found to be without merits, therefore, dismissed, along with connected
application(s).
(MOKSHA KHAJURIA KAZMI)
JUDGE
SRINAGAR:
29.07.2026
“Adil Ismail”
CM(M) 163/2025 Page 8 of 8
