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2008 DIGILAW 504 (JK)

Three Star Enterprises v. State Of J. &K.

2008-12-22

MUZAFFAR HUSSAIN ATTAR

body2008
1. "Cicero" the famous Roman statesman has said, "chief law is public good." In democratic society courts function for the benefit of society, so Judges are accountable to the society. Judges are not per se public servants. They carry out the will of the Legislature subject to constitutional limitations and laws. The role of the Judge is not only to resolve the disputes but the Judges are further charged with the sacred duty of administering justice. Justice has to be administered according to laws. May be in rare and most exceptional cases justice may be tempered with mercy. Judge in the discharge of his sacred duty has to follow the procedure established by law. "Deuteronumic" code of old testament summarized the personality of Judge as under; "And charged your Judges at the time, saying, hear the causes between your brethren, and Judge righteously between every man and his brother, and the stranger that is with him. Ye, shall not respect person in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of the man,"(Denternomy, Chapter 1 versus 16-17). The judges who are bestowed with the sacred and onerous duty of administering justice, have not to decide the lis before them according to their own predilections and peculiar dispositions. Justice has to be administered in accordance with laws and settled judicial principles. "Delvin" in the "Judge" has said; "Judge who gives the right judgment while appearing not to do so may be thrice blessed in Heaven, but on earth he is no use at all." 2. The necessity has arisen for stating all this in the case in hand. It appears from the record of the trial court that the trial court has dealt with the matter in routine manner. The record reveals that the present petitioner, hereinafter referred to as plaintiff, instituted Civil Original Suit against the respondents hereinabove referred to as defendants in the court of Sub-Judge Handwara, the plaintiff sought following decrees from the court: "i) By a decree for permanent injunction be passed in favour of the plaintiff and against the defendants restraining the defendants from shifting the timber from the premises of the unit of the plaintiff till the investigation by the vigilance department is completed. ii) Any other decree, relief, order or command which this Honble Court deems fit and proper in the circumstances of the case be also passed in favour of plaintiff and against the defendants. Same will meet the ends of justice." 3. The plaintiff in the plaint has stated that he has Unit at Kachwari Handwara and the said Unit is being run by him as an attorney for last more than five years. He has further pleaded that he is conducting his affairs merely in accordance with the guidelines and rules prescribed by J&K Forest Act. The plaintiff has further averred in the plaint that he has been running the Unit to the satisfaction of the defendants from the date of its installation and no complaint whatsoever has been filed with the defendants against functioning of the plaintiffs Unit. The plaintiff has further submitted that the defendants either themselves or through their authorized officials are at intervals checking the records, stock in hand, in the Unit of the plaintiff. The plaintiff has further averred that on 26th May 2007, some officials of Vigilance Organization inspected the Unit of the plaintiff and seized some timber which was stocked in the premises of the plaintiffs unit. He has further submitted that the timber so seized is legal. The plaintiff has further averred in the plaint that measurement of the seized timber could not be conducted by the Vigilance Organization as no expert was accompanying them. The seized timber, however, was hammered by the officials of the Forest Department and the timber was kept in the premises of the unit of the plaintiff. At para 8 of the plaint, the plaintiff has submitted that the defendants are now causing undue interference with the smooth running of the unit and have warned the plaintiff that all the timber will be shifted from the unit of plaintiff to some other place. He has further alleged that the act/interference of the defendants is illegal and unjustified as the investigation of the Vigilance Department is at preliminary stage. The cause of action has been shown to have accrued to plaintiff few days before filing of the plaint as the defendants tried to shift the timber from the premises of the plaintiff and on these pleadings the above `reproduced decrees were sought by the plaintiff. 4. The cause of action has been shown to have accrued to plaintiff few days before filing of the plaint as the defendants tried to shift the timber from the premises of the plaintiff and on these pleadings the above `reproduced decrees were sought by the plaintiff. 4. Along with this suit, the plaintiff also filed an application seeking interim relief to restrain the defendants from causing any interference with the Unit of the plaintiff. It was further prayed that subject to undertaking the plaintiff be allowed to use the seized timber. 5. Alongside the suit on the same day viz 30th May 2007, yet another application was filed by the plaintiff praying therein that the requirements of Section 80 CPC be dispensed with. In the application at para 2 it is pleaded that matter is of an emergent nature and in case the requirements of notice u/s 80 CPC are not dispensed with, the applicant shall be non-suited. The plaintiff, however, has not mentioned the circumstances and given the reasons as to why the matter is of an emergent nature and requires order of the trial court for dispensation of notice under section 80 CPC. 6. The record reveals that on presentation of the suit, along with ancillary application which has been registered as 66/Numberi, the learned trial Judge marked the plaint and application seeking interim relief, as also application for dispensation of notice u/s 80 CPC to the court clerk. The record further reveals that the concerned clerk has recorded his observations about the suit and also the two applications. The record further reveals that in the suit on the day of institution viz 30th July 2007, the learned trial Judge has recorded in his order that the suit has been instituted by counsel for the plaintiff in open court and the plaint has been sent for obtaining report from the concerned clerk with direction to enter the suit into the concerned register. The office has been further directed to issue notice to the defendants for seeking their appearance and the suit was ordered to be posted for 9th June 2007. 7. In the application seeking interim relief order in the like manner has been passed. The office has been further directed to issue notice to the defendants for seeking their appearance and the suit was ordered to be posted for 9th June 2007. 7. In the application seeking interim relief order in the like manner has been passed. However, in the application seeking dispensation of service of notice under section 80 CPC, it appears, that no order has been passed by the trial court and the said application has remained unattended from the day first. The record of the trial court further reveals that the trial court passed an order dt.05th June 2007 on the fresh application purporting to have been filed by plaintiff under section 151 CPC vide which the defendants were directed not to lift the timber from Kachiwari point to any destination. This order was however subject to objections of other side. Perusal of order reveals that this order has been passed without issuance of notice to the defendants. The application under section 151 CPC was filed on 5th June 2007 itself when the above referred order was passed without notice to the defendants. In the said application the plaintiff at para 8 has specifically stated that the defendants have issued notice under section 26-E of the Forest Act to the plaintiff. It may not be out of place to mention here, that on the date of presentation of suit i.e 30th May, 2007, the learned trial Judge had allowed the application of the plaintiff and directed the defendant No.2 to get the seized timber measured by an expert on spot and submit report to the court by or before next date i.e 9th June 2007. The record further reveals that yet another application was filed by plaintiff on 9th June 2007 praying therein that the plaintiff be allowed to use the seized timber or same may be released in favour of the plaintiff. 8. The record of the trial court further reveals that on 11.06.07 an application was filed by defendant No.2 before the trial Court praying therein that the said authority be permitted to lift the seized forest property from the unit of the plaintiff. The learned trial Judge has issued notice on said application for filing of objections and directed the posting of the said application on 13.06.07. The learned trial Judge has issued notice on said application for filing of objections and directed the posting of the said application on 13.06.07. In the meanwhile an application was filed by plaintiff on 22.06.07, on which the trial court passed an order on 3rd July 2007 where under the defendants were restrained from causing any interference with the smooth running of the applicants joinery mill and also restrained from causing any impediment in the applicants right of earning livelihood provided the forest produce about which order of status quo was passed by this court, is lying in the Sales Depot. 9. The record further reveals that one "Serwa Begum" filed writ petition against the State and Ors before this court which was registered as OWP No.440/2007. The petitioner in the said writ petition has claimed to be sole proprietor of M/s Three Star Enterprises. She had stated in the writ petition that she has Small Scale Industrial Unit, registered with the Directorate of Industries functional at Kachwari Handwara. The unit is manufacturing wooden, joinery and furniture items. It was further pleaded in the said writ petition the unit is registered as "Sale Depot" by respondent no.4 under Rule (3) of Sale Depot Rules. It was further pleaded in the said writ petition that the Vigilance team headed by respondent No.6 in the said writ petition on 26.05.2007 seized some timber, which according to petitioner were legal stocks as same were supported by valid documents. In the said writ petition communications dated 14.06.2007 and dated 15.06.07 were sought to be quashed by issuance of writ of certiorari as also show cause notice dt. 18.06.07 . It was further prayed that by writ of mandamus that respondents therein be directed not to lift the seized timber from the petitioners Joinery Mill and the sale depot located at Kachwari Handwara besides some other relief were also prayed for. The said writ petition however was dismissed by this court vide its order dated 5.2.08 holding that the writ petition is premature as the proceedings initiated, criminal case registered, and the investigation thereupon are not warranted to be stopped. The judgment copy is also on the record which reveals that the proceedings under section 26E of Forest Act have also been initiated by the concerned authorities. The judgment copy is also on the record which reveals that the proceedings under section 26E of Forest Act have also been initiated by the concerned authorities. The judgment also reveals that case FIR No. 42/07 under section 5(2) of Prevention of Corruption Act read with section 120 RPC and offence punishable under section 471 RPC stand registered in P/S (VOK). 10. The Divisional office Langate, Kupwara, being aggrieved of order dated 3rd July 2007 passed by subordinate judge challenged the same in an appeal before the court of Pr. District and Sessions Judge Kupwara. The Pr. District Judge Kupwara after hearing the parties set aside the order dated 3.7.07 passed by subordinate judge. It is against this order, that the plaintiff has filed this revision petition. 11. Before adverting to the legality or otherwise of the impugned order, it would be appropriate to refer to some of the provisions of Code of Civil Procedure which the trial court appears, has not adverted his attention to. The Court of law where any case is filed has not to act mechanically, but has to consider the case so filed, suit instituted on the basis of the law occupying the field. It is statutory duty of the court/Judge to satisfy itself about the competence and maintainability of suit before it orders issuance of notice to the otherside. Reference is made to section 26 and 27 of CPC:- "26. Institution of suit. Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. 27. Summons to defendants. Where a suit has been duly instituted, a summon may be issued to the defendant to appear and answer the claim and may be served in manner prescribed." 12. The said provisions of CPC are to be read in conjunction with order 1 rule (2) and Section 80 CPC which is reproduced as under:- "80. Notice. 27. Summons to defendants. Where a suit has been duly instituted, a summon may be issued to the defendant to appear and answer the claim and may be served in manner prescribed." 12. The said provisions of CPC are to be read in conjunction with order 1 rule (2) and Section 80 CPC which is reproduced as under:- "80. Notice. (1) Save as otherwise provided in sub-section (3), no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been in the case of the Government, delivered to, or left at the office of the Chief Secretary to Government and, in the case of a public officer, delivered to him or left at his office, stating the cause of action the name, description and place of residence of the plaintiff and the relief which he claims; and plaint shall contain a statement that such notice has been so delivered or left. .." 13. Order 7 Rule 11 relates to the power of the court to reject the plaint. "11. Rejection of plaint. The plaint shall be rejected in the following cases.- (a) Where it does not disclose a cause of action; (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) Where the suit appears from the statement in the plaint to be barred by any law. Provided that time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." 14. A conjoint reading of all these provisions make it writ large on the face of the Statute that the court where the suit is instituted is duty bound, at the time of institution of the suit itself to consider the pleadings made therein, so as to find out as to whether the suit is competent in law and whether notice requires to be issued to the defendants or the suit is barred by any statute and plaint requires to be rejected. This statutory duty when complied with by the learned Judge will ensure at the threshold proceedings, the weeding out of those cases which even at its final stage will be dismissed for the same reasons and on the same ground, on which it can be rejected at initial stage. The trial Judge, however is duty bound to hear the plaintiff before rejecting the plaint for any of the legal limitations/constraints/impediments. 15. While following the statute in its letter and spirit the learned judge will ensure that only those cases which require adjudication occupy the precious time of the court, which otherwise, is public time and other cases which are barred by same statute or do not disclose any cause of action do not impinge upon the public time and do not waste the court time as well. 16. This court is conscious that revision petition is filed challenging the order passed by First Appellate Court setting aside the order which is passed in an ancillary application by the learned trial Judge. This court has ventured to examine the record of the trial court and orders passed therein on the basis of the power conferred on this court by section 115 of the CPC. This court can call for record and examine the legality and proprietary of any order passed by the subordinate courts. The contours for exercising of such power have been summarily delineated by the Supreme Court in case "Nalakath Sainuddin v. Koorikadan Sulaiman reported in (2002) 6 SCC page 1; para 10, 11,12, and 17(ii) of the said judgment reads as under: "10. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat it has been held that revisional jurisdiction partakes the appellant jurisdiction of a superior court. The right of appeal is one of entering a superior court and invoking its aid and interposition to redress the error of the court below. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat it has been held that revisional jurisdiction partakes the appellant jurisdiction of a superior court. The right of appeal is one of entering a superior court and invoking its aid and interposition to redress the error of the court below. Two things which are required to constitute appellate jurisdiction are: the existence of the relation of superior and inferior court and the power on the part of the former to review decisions of the latter. When the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Subject to limitations placed on the exercise of revisional jurisdiction, it remains a part of the general appellate jurisdiction of a superior court in a wider and larger sense. 11. In Major S.S. Khanna v. Brig. F.J. Dhillon 2 this Court held that when revisional jurisdiction is exercised in relation to a "case", it can also be exercised in relation to a part of a case. Hidayatullah, J. (as His Lordship then was), in his separate concurring opinion, compared the revisional jurisdiction of the High Court with the jurisdiction to issue a writ of certiorari and held that the revisional jurisdiction is clearly in the nature of a proceeding on a writ of certiorari though His Lordship also pointed out the essential differences between the two powers. However, His Lordship clearly opined that the revisional jurisdiction is conferred to keep the subordinate courts within the bounds of their jurisdiction and once a flaw of jurisdiction is found the High Court exercising revisional jurisdiction need not quash and remit as is the practice in English law under the writ of certiorari but can itself pass such order as it thinks fit. 12. In Babulal Nagar v. Shree Synthetics Ltd. 3 it was held that once a jurisdiction is conferred to examine the propriety or impropriety of the order, the jurisdiction is wide. One meaning assigned to the expression "propriety" is "justice". A jurisdiction to examine the propriety of the order or decision carries with it the same jurisdiction as the original authority to come to a different conclusion on the said set of facts. If any other view is taken, the expression "propriety" would lose its significance. One meaning assigned to the expression "propriety" is "justice". A jurisdiction to examine the propriety of the order or decision carries with it the same jurisdiction as the original authority to come to a different conclusion on the said set of facts. If any other view is taken, the expression "propriety" would lose its significance. 17.(ii) Once a revision petition is entertained by the High Court, whichever be the party invoking the revisional jurisdiction, the High Court acquires jurisdiction to call for and examine the records of the authority subordinate to it. The records relating to "any order" and/or any proceedings, are available to be examined by the High Court, for the purpose of satisfying itself as to the (a) legality, (b) regularity, or (c) propriety of the impugned order, including any part of the order, or proceedings. The only limitation on the scope of the High Courts jurisdiction is that the order or proceedings sought to be scrutinized must be of the subordinate authority. Any illegality, irregularity or impropriety coming to its notice is capable of being corrected by the High Court by passing such appropriate order or direction as the law requires and justice demands." 17. The very fact that the learned trial Judge has passed order to allow the institution of the suit without service of notice under section 80 CPC and without dispensing with the requirement of service u/s 80 CPC on defendants renders the suit not maintainable in the eye of law. However, this court refrains from passing the order on this ground and leaves the matter to be addressed to and decided by the trial court after hearing the parties for passing of appropriate orders. It may not be out of place to mention here, had the trial court not dealt with the case in routine manner, the situation would not have reached to this past. Section 80 CPC prohibits institution of suit without service of notice. Section 80 CPC by its reading further provides that if the court is satisfied that suit is to obtain and urged for immediate relief against the government or any public officer, the suit may be instituted with the leave of the court. The record reveals that no such leave has been granted by the trial court and in view of sub section (3) of section 80 CPC the suit could have not been instituted. The record reveals that no such leave has been granted by the trial court and in view of sub section (3) of section 80 CPC the suit could have not been instituted. Further even after the court on the facts of the particular case grants leave to plaintiff for institution of the suit under sub section (3) of section 80 CPC , still the court cannot grant any relief in the suit whether interim or otherwise unless and until the Government or Public officer is given reasonable opportunity of showing cause in respect of relief prayed for in the suit. 18. In the present case, the learned trial Judge has not even granted leave for institution of the suit and still has issued interim direction on the very first day when the suit was presented before the trial court. 19. It is no longer res integra that for rejecting the plaint under Order 7 Rule 11 CPC, it is only averments made in the plaint which are required to be looked into by learned trial court and if it is found that the suit is barred by any statute or does not disclose any cause of action, it becomes duty of the court to reject the plaint. It is further settled law that trial court can exercise the power under Order 7 Rule 11 CPC at any stage, viz before registration of the case or after issuance of notice or at any time before conclusion of the trial. . The Honbble Supreme Court in case titled "Sopan Sukhdeo Sable and ors appellant v. Assistant Charity Commissioner and ors respondents " reported in 2004 (3) SCC 137, has laid the law that Rule 11 Order 7 lays down independent remedy made available to the defendants to challenge the maintainability of the suit itself irrespective of his right to contest the same on its merits. The Honble Supreme Court has further held that the word "shall" used in order 7 Rule 11 cast a duty on the court to perform its obligation in rejecting the plaint when same is hit by any infirmities, provided in the four clauses of Rule 11, even without intervention of the defendant. Relevant part of the judgment which falls in para 10,11 and 20 is reproduced herein below: "10. Relevant part of the judgment which falls in para 10,11 and 20 is reproduced herein below: "10. In Saleem Bhai v. State of Maharashtra, it was held with reference to Order 7 Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. 11. In I.T.C Ltd. V. Debts Recovery Appellant Tribunal, it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code. 20. ..Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used, clearly implying thereby that it casts a duty on the court to perform its obligation in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any even, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plain in terms of Rule 13." 20. Similarly in case titled "Pearlite Liners (p) Ltd v. Monorama Sirsi reported in (2004) (V.3) SCC 172 has held that if none of the reliefs under law can be granted to the plaintiff then the suit shall not be allowed to continue and go for trial. Para 10 of the said judgment is reproduced as under:- "10. Similarly in case titled "Pearlite Liners (p) Ltd v. Monorama Sirsi reported in (2004) (V.3) SCC 172 has held that if none of the reliefs under law can be granted to the plaintiff then the suit shall not be allowed to continue and go for trial. Para 10 of the said judgment is reproduced as under:- "10. The question arises as to whether in the background of the facts already stated, such reliefs can be granted to the plaintiff. Unless there is an term to the contrary in the contract of service, a transfer order is a normal incidence of service. Further, it is to be considered that if the plaintiff does not comply with the transfer order, it may ultimately lead to termination of service. Therefore, a declaration that the transfer order is illegal and void, in fact amounts to imposing the plaintiff on the defendant in spite of the fact that the plaintiff allegedly does not obey order of her superiors in the management of the defendant Company. Such a relief cannot be granted. Next relief sought in the plaint is for a declaration that she continues to be in service of the defendant Company. Such a declaration again amounts to enforcing a contract of personal service which is barred under the law. The third relief sought by the plaintiff is a permanent injunction to restrain the defendant from holding an enquiry against her. If the management feels that the plaintiff is not complying with its directions it has a right to decide to hold an enquiry against her. The management cannot be restrained from exercising its discretion in this behalf. Ultimately, this relief, if granted, would indirectly mean that the court is assisting the plaintiff in continuing with her employment with the defendant Company, which is nothing but enforcing a contract of personal service. Thus, none of the reliefs sought in the plaint can be granted to the plaintiff under the law. The question then arises as to whether such a suit should be allowed to continue and go for trial. The answer in our view is clear, that is, such a suit should be thrown out at the threshold. Why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for, be tried at all? The answer in our view is clear, that is, such a suit should be thrown out at the threshold. Why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for, be tried at all? Accordingly, we hold that the trial court was absolutely right in rejecting the plaint and the lower appellate court rightly affirmed the decision of the trial court in his behalf. The High Court was clearly in error in passing the impugned judgment whereby the suit was restored and remanded to the trial court for being decided on merits. The judgment of the High Court is hereby set aside and the judgment of the courts below, that is, the trial court and the lower appellate court are restored. The plaint in the suit strands rejected." 21. Thus, O 7 R 11 confer power on courts to reject the plaint at any stage, of course after giving due opportunity of hearing to the plaintiff, if no final relief at the end of the trial can be granted to the plaintiff. 22. Section 54 read with section 56(d) of the Specific Relief Act provides that no injunction can be granted to interfere with the public duties of any department of the Government of India or (the Government of a State within the Indian Union excluding the Jammu and Kashmir State) or the State, or with the sovereign acts of a Foreign Government. 23. The decrees for injunction as such cannot normally be granted which prevent the Statutory authorities to discharge their statutory functions. 24. Section 107 of CPC confers power on the Appellate Court subject to such conditions and limitations as may be prescribed to have the same powers and perform as nearly as may be the same duties as are conferred and imposed by the courts on the courts of original jurisdiction in respect of the suit instituted therein. 25. Heard learned counsel for the parties. The contention of learned counsel for petitioner is that the impugned order is bad as the First Appellate Court has given opinion on merits of the case which according to the learned counsel for the petitioner renders the order impugned bad in law. 25. Heard learned counsel for the parties. The contention of learned counsel for petitioner is that the impugned order is bad as the First Appellate Court has given opinion on merits of the case which according to the learned counsel for the petitioner renders the order impugned bad in law. He further contended that the trial court had jurisdiction to issue temporary injunction order even though it was not in consonance with the relief sought for in the suit. On this the learned counsel has relief on judgment reported AIR 2001 J&K 32. The learned counsel for the petitioner also submitted that the Appellate Court should have not considered the impact of non-service of notice u/s 80 CPC on the facts of the case which according to ld. counsel touched the merits of the case in an ancillary application, in the submission of the learned counsel for the petitioner the court could not frame an opinion. He has also referred to AIR 2000 SC 3350. The learned counsel for petitioner has further argued that as no objection has been taken by respondents-defendants in respect of non-service of notice under section 80 CPC so same has been waived by them in this behalf, he has referred AIR SC 2007 page 113. The ld. Counsel further submitted that the First Appellate Court has up set the order of the trial court for non compliance with the mandate of section 80 CPC and for holding that the trial court has not recorded finding that the petitioner has prima facie case, balance of convenience is in his favour and he will suffer an irreparable loss in case order is not passed in his favour. In the submission of learned counsel for petitioner trial court has complied with the requirements of law before passing of the order dated 3rd July 2007. On these grounds the learned counsel submits that the order passed by the Appellate court deserves to be set aside. 26. The learned counsel for respondent No.2 however in reply submitted that the order passed by the trial court is patently illegal and has been passed without complying with the requirements of law and its effect is restraining the competent statutory authority to proceed against the petitioner in accordance with the provisions of law. The learned counsel has submitted that the order passed by First Appellate Court is valid in the eye of law. The learned counsel has submitted that the order passed by First Appellate Court is valid in the eye of law. The learned counsel in support of his contention has placed reliance on judgment reported in 2002 1 SLJ 285; AIR 1999 SC 853; 1999 SLJ page 443. 27. The learned counsel appearing for respondent has also placed reliance on the judgments reported in AIR 2007 SC 113 cited at bar by learned counsel for petitioner. 28. The question involved primarily in this case is as to whether the order of the appellate court in setting aside the order of the trial court is legal or otherwise. The order passed by the trial court at the first blush is rendered illegal for the reasons that the relief granted as an interim measure is beyond the scope of the relief sought for in the main suit. The relief sought for in the suit has been re-produced in this judgment in which a decree for permanent injunction has been sought against the defendants to restrain them from shifting the timber from the premises of the plaintiff till investigation by department is completed. The trial court, however, in dis-regard to the settled principles of law has issued an order which is not sought for in the main suit. It is however made clear that there may be cases in which the trial court on the exceptional grounds and for the reasons to be recorded may in the interest of justice pass an order as an interim measure though the like relief may not be sought for in the suit. The normal rule of law is however that the relief cannot be granted beyond the prayer made in the main suit. Reference in this behalf is made to 1999 V 3 SCC page 132, case titled Maharashtra State Electricity Board and ors appellant v. Vaman and ors respondents. In which it has been held that the court cannot issue an interim order which would be in excess of the relief sought for in the main suit. 29. This court in case titled "Assadullah Ahanger v. Ab. Ahad Ahanger" reported in 2002 (1) SLJ page 285 has held that court has no jurisdiction to grant by way of interim relief what could not be granted in the main suit. 29. This court in case titled "Assadullah Ahanger v. Ab. Ahad Ahanger" reported in 2002 (1) SLJ page 285 has held that court has no jurisdiction to grant by way of interim relief what could not be granted in the main suit. The interim injunction granted during pendency of the suit greater in scope than what could be granted in the main suit, is without jurisdiction. 30. The learned counsel for the petitioner-plaintiff however has placed reliance on AIR 2001 JK page 32 to canvas that the court has power to issue interim injunction order even if same is not in consonance with the relief sought for in the main case. 31. I have had the benefit of going through the judgment. The judgment does not any where spell out that the court can issue interim order beyond the relief sought for in the main suit. The defendants have not as yet filed written statements and it cannot be said that as to whether they have waived their objections in respect of non issuance of service of notice under section 80 CPC. Besides the trial court has not even granted leave to institute the suit to the plaintiff which renders the order passed by the trial court illegal and bad in law. The first appellate court is right in holding that without issuance of notice under section 80 CPC, the order passed by the trial court is rendered bad in law. 32. The facts as enumerated hereinabove sufficiently shown that the First Appellate court has considered all valid and legal aspects of the case while setting aside the order passed by the trial court. It is settled principle of law that statutory authority cannot be restrained from proceedings in the matter in accordance with the Statute by way of injunctions. The plaintiff has himself admitted in one of his applications filed before trial court that notice u/s 26 of J&K Forest Act 1987 (1930 AD) has been issued against him. The J&K Forest Act provides complete mechanism and machinery for dealing with the situation like the one faced in this case. The Statutory authority cannot be restrained from discharging its Statutory functions like this. The concerned police agency is also in seizen of the matter and Civil Courts in the facts and circumstances of this case cannot prevent the Statutory authority from exercising its Statutory duties and powers. The Statutory authority cannot be restrained from discharging its Statutory functions like this. The concerned police agency is also in seizen of the matter and Civil Courts in the facts and circumstances of this case cannot prevent the Statutory authority from exercising its Statutory duties and powers. The Supreme Court in case titled M. Gurudas and ors. v Rasaranjan and ors, reported in AIR 2006 SC 3275 has held that apart from finding out a prima facie case, it must be shown that contention of plaintiff is bonafide. The question sought to be tried must be a serious question and not only triable one. The conduct of parties is also required to be seen. 33. The contention of ld. counsel for petitioner is that the appellate court has delved into merits of case merits rejection for the reasons stated hereinabove. The Judgment cited at bar do not support the contention of petitioner. 34. The court has considered the matter. The petitioner has neither prima facie case in his favour, nor balance of convenience lies in his favour. The petitioner will not suffer any irreparable injury as he has all the safe guards available to him under J&K Forest Act, Svt. 1987 (1930 AD). The order impugned in this petition does not suffer from any illegality or material irregularity. The petition is accordingly dismissed. No costs.