Mohammad Abdullah vs Abdul Hassan & Ors on 15 July, 2025

Jammu & Kashmir High Court – Srinagar Bench

Mohammad Abdullah vs Abdul Hassan & Ors on 15 July, 2025

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

                                                                                            Serial No. 02
                                                                                            REGULAR LIST

                           IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                              AT SRINAGAR

                                                         LPA No. 101/2023

                       MOHAMMAD ABDULLAH                                       ...Petitioner/Appellant(s)

                       Through: Mr. R.A. Jan, Sr. Advocate with
                                Mr. Suhail Mehraj, Advocate
                                                        Vs.

                       ABDUL HASSAN & Ors.                                                ...Respondent(s)

Through: Mr. Baber Bilal Malik, Advocate with
Mr. M. Tufail, Advocate
Mr. M. Muzaffar, Advocate
CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE

ORDE R
15.07.2025

Per Sanjeev Kumar-J (oral):

1. This appeal under Clause 12 of the Letters Patent arises from an

order dated 18th March, 2023, passed by the learned Single Judge

[“the writ Court”] in RP No. 23/2023 titled “Abdul Hassan Vs.

Mohammad Abdullah & Ors.“, whereby the learned Single Judge

has rejected the review petition, observing therein unequivocally

that the determination of the question whether the appellant could

maintain an application for setting aside the ex-parte decree before

the trial court is still open to discussion at the time of final disposal

of the appeal.

2. Briefly stated, the facts leading to the filing of this appeal are that,

against an order dated 26th December, 2022, passed by the Court of

Principal District Judge, Kargil [“the trial court”], dismissing the

application filed by the respondent for setting aside an ex-parte

Arif Hameed
I attest to the accuracy and
authenticity of this document

16.07.2025
judgment and decree dated 13th December, 2019, an appeal was

preferred before the learned Single Judge.

3. On the appeal being taken up for consideration, a preliminary

objection was raised by the learned counsel appearing on behalf of

the appellant herein to the maintainability of the appeal at the

instance of the respondent, against whom there was no decree

passed by the trial court.

4. Vide order dated 16th March, 2021, the learned Single Judge

disposed of the preliminary objection, holding that the respondent,

whose application under Section 9 Rule 13 CPC stood dismissed,

was entitled to challenge that order by way of an appeal.

Accordingly, the appeal by such a person was held maintainable.

5. The appellant took exception to the order dated 16th March, 2021,

passed by the learned Single Judge and filed an application seeking

review of the judgment on the ground that the learned Single

Judge, while holding that the appeal by the respondent was

entertainable, also pronounced upon the maintainability of the

appeal.

6. The review petition was considered by the learned Single Judge

and vide impugned order dated 18th March, 2023, the same was

dismissed. The learned Single Judge, however, clarified the

judgment under review by observing that:-

“the determination of the question whether the appellant
could maintain an application for setting aside ex-parte decree
before the trial court, shall be open to discussion at the time of
final disposal of the appeal.”

7. Not satisfied with the order passed in review, the appellant is now
Arif Hameed
I attest to the accuracy and before us. The counsel for the respondent has taken a preliminary
authenticity of this document

16.07.2025
objection with regard to the maintainability of the appeal under

Clause 12 of the Letters Patent.

8. We could have adjudicated upon the objection to the

maintainability raised by the learned counsel for the respondent,

but having regard to the fact that we are not inclined to interfere

with the order passed by the learned Single Judge, we deem it

appropriate not to go into the question, which, for the aforesaid

reason, is rendered only academic.

9. We, therefore, dispose of this appeal by providing that, as has been

held by the learned Single Judge clearly in the judgment under

challenge before us, the question „whether the respondent, who is

the appellant before the learned Single Judge, could maintain an

application for setting aside the decree before the trial court‟ is

open to discussion at the time of final disposal of the appeal,

notwithstanding that the appeal at the instance of the respondent is

entertainable and lies before the Appellate Court.

10.Disposed of alongwith connected CMs.

                                 (SANJAY PARIHAR)                         (SANJEEV KUMAR)
                                          JUDGE                                   JUDGE
                         SRINAGAR:
                         15.07.2025
                         "ARIF"
                                         (i)    Whether the order is speaking? Yes/No.

(ii) Whether the order is reportable? Yes/No.

Arif Hameed
I attest to the accuracy and
authenticity of this document

16.07.2025