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:
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.