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2001 DIGILAW 144 (JK)

Ab. Hamid Shah v. Chief Secretary, J&K Govt.

2001-07-19

B.L.BHAT

body2001
1. This motion of revision is directed against the order of Sub Judge, Kupwara recorded on application for issuance of ad-interim injunction dated 4.4.1999 arising in Civil Original suit titled as Abdul Hamid Shah versus Chief Secretary of J&K Government and others, whereby he came to refuse the issuance of ad-interim injunction and against the order of the Ld. Distt. Judge, Kupwara dated 30.9.1999, whereby he came to dismiss the appeal preferred against the order of learned Sub-Judge, Kupwara. 2. The inconvertible facts in this appeal are that the petitioner/plaintiff came to institute a suit for perpetual before the learned Sub-Judge, Kupwara to the effect that they be permanently restrained to raise construction of School Building on Survey No.1517 located at Drugmulla-Kupwara in such a way which may cause damage to the roots and branches of two walnut trees belonging to the petitioner/ plaintiff existing in Survey No.2995 located at Dragmulla-Kupwara. Alongside, this suit the petitioner/plaintiff came to file an application for issuance of ad-interim injunction to the effect that till the final decision of the suit the respondents which includes public functionaries and the private individual, to restrain from carrying out proposed construction of the school building on survey No. 1517 located at Drugmulla-Kupwara which is state land near survey No. 2995 where two walnut which are existing on spot from last about two decades in such a manner which may cause damage to the roots and branches of the said walnut trees. The learned Sub-Judge rejected the petition after holding that neither the petitioner/plaintiff has a prima facie case nor the balance of convenience in his favour. 3. The petitioner/plaintiff went in appeal against the order -of the trial court before the learned District Judge, Kupwara who while affirming the order of the learned trial court also came to dismiss the appeal. 4. Now through the motion of this revision the petitioner/plaintiff seek setting aside of the said order of the trial court and that of the learned District Judge, Kupwara. 5. Considered. Admitted. Issue fresh notices M/S M.H. Attar and Mr. G.N. Shaheen present in the court accepted notice. Heard learned counsel for the parties and perused the file very assiduously. 4. Now through the motion of this revision the petitioner/plaintiff seek setting aside of the said order of the trial court and that of the learned District Judge, Kupwara. 5. Considered. Admitted. Issue fresh notices M/S M.H. Attar and Mr. G.N. Shaheen present in the court accepted notice. Heard learned counsel for the parties and perused the file very assiduously. It is well established that in deciding grant or refusal of temporary injunction the court must be satisfied that: - a. The party seeking issuance of order of ad-interim injunction has a strong prima facie case; b. Protection is necessary from the species of injuries known as irreparable before legal right is established and; c. The mis-chief or inconvenience likely to arise from with holding of injunction is greater than from granting it. If any one of these conditions are lacking, an order of temporary injunction is to be refused. After hearing the learned counsel for the parties and from the record available on the revision petition, the dispute between the parties is with respect to the construction of the Public School at village Drugmulla, on the State land comprising of survey No. 1517, which is State Land over which few branches of two walnut trees existing in land comprising of survey No. 2995 located near the said survey number at Drugmulla-Kupwara belonging to the petitioner/plaintiff are spread and the plaintiff apprehends damage to its roots and branches by commencing with the construction of this public school. It is stated by the learned counsel for the appellant in open court that the School building on spot is complete up to first floor. Construction of a public school building is undoubtedly in the interest of public. In a developing country like ours; public interest always deserves to be given precedence over the individual interests. Granting of ad-interim injunction as prayed for by the petitioner/plaintiff in his petition for issuance of ad-interim injunction will under all circumstances and undoubtedly amount to giving precedence to individual interests over the public interests. This being so, the mis-chief of inconvenience likely to arise from granting ad-interim injunction as prayed for by the petitioner/ plaintiff is greater than from-holding it. 6. This being so, the mis-chief of inconvenience likely to arise from granting ad-interim injunction as prayed for by the petitioner/ plaintiff is greater than from-holding it. 6. The revisional jurisdiction of the High Court under section 115 CPC can be invoked only when the courts subordinate to it while passing the orders impugned in the motion of revision before it have exercised jurisdiction not vested in it or has omitted to exercise vested in it by law or has acted in exercise of its jurisdiction with illegality or material irregularity. From the perusal of the impugned orders respectively recorded by the learned trial court and the First appellant court are eminently just and deserve to be affirmed. 7. Therefore, the motion of revision fails and is accordingly rejected. Copy of this order be sent to the learned District Judge, Kupwara and the learned trial court for their information and necessary action. The revision petition is, accordingly dismissed.