S S KADIAN Vs. UNION OF INDIA
LAWS(J&K)-1993-12-15
HIGH COURT OF JAMMU AND KASHMIR
Decided on December 01,1993

S S Kadian Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.)THE appellant S.S. Kadian, Lt. Col. in the Indian Army, was to face trial before court martial. It appears that some preliminary steps were taken towards convening of court martial. The petitioner filed writ petition no. 2289 of 1993 at the Srinagar Wing of this court challenging the proceedings and also the right to convene the court martial. In the said writ petition, an application for interim relief had been made where upon interim order dated Oct 1, 1993 was passed in these terms : -
"... Till next date of hearing, status -quo with respect to the petitioner shall be maintained in all respects."

(2.)ON Oct. 22, 1993, an order was issued convening court martial for Oct 28, 1993. The issue and service if this order upon the appellant led the appellant to file SWP no. 1312/1993 at the Jammu Wing of the Court. This writ petition came up for orders as regards admission before Honble Mir. J. who had passed The interim order dated Oct 1, 1993 in the earlier writ petition, and was dismissed by Judgment and order dated Nov. 4 1993. The present appeal directed against this judgment.
(3.)IN the writ petition which has given rise to the present appeal, the plea of the appellant was that the notice dated Oct. 22, 1993 is in violation of the courts Interim order dated Oct. 1, 1993. The appellant asserts that in view of the direction to maintain status -quo the said notice could not be issued. This is the main, rather the only ground of attack in the writ petition. The learned Single Judge has held that admittedly the interim order dated Oct 1, 1993 had not been communicated to the concerned authorities till Oct. 28, 1993 and, therefore, the order issued on Oct 22, 1993 could not be said to be violative of the interim order. Mere passing of an interim order is not enough to compel1 its obedience. The interim order has to be communicated also. Even before us, the learned counsel for the appellant did not dispute the finding of the learned Single Judge that the interim order dated Oct 1, 1993 was communicated on Oct 28, 1993. In view of this admitted position, the order dated Oct 22, 1993, which was impugned in the writ petition, cannot be said to be in violation of the order dated Oct 1, 1993 or in disobedience thereof.
Learned counsel for the appellant tried to argue that since respondents had filed & caveat in the case there was no obligation on the part of the appellant to communicate the interim order dt. Oct. 1, 1993. Mere filing of caveat is not enough to charge the caveator with the knowledge of the order passed in the proceedings. The caveator has to be served with notice of the writ petition and with duplicate of the writ petition. In the present case, it is not the plea of the appellant that the writ petition was filed at Srinagar after notice to the learned counsel for the respondents. Rather paragraph of the present writ petition contains appellants admission that the notice of the petition Was not given to the counsel for the respondents. In the said paragraph, it has been stated:



Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.