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2016 DIGILAW 63 (JK)

KARTAR CHAND v. TARSEEM LAL

2016-02-19

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. Instant appeal is directed against Order dated 28.11.2011 passed by Learned Additional District Judge, Kathua in an application under Order 39, Rule 1, 2 and 3 read with Section 151, CPC, for grant of ad interim injunction filed in a suit titled Tarsem Lal v. Kartar Chand, whereby defendant-appellant herein was restrained from interfering with the suit property except Kacha Kotha, which is in possession of one Manga Ram. 2. The facts in brief are that Tarsem Lal respondent herein filed a Suit for grant of decree for Specific Performance of Contract directing defendant-appellant herein to execute the Sale Deed in favour of plaintiff-defendant herein on the basis of Agreement to Sell dated 24th day of March, 2011, stated to have been executed by the appellant herein in favour of the respondent herein in respect of land described therein. In the suit it is alleged that vide Agreement to Sell dated 24th March 2011, Kartar Chand, appellant, agreed to sell 08 Marlas of land to respondent under Khasra 361 Min situated in Village Phalote Tehsil Kathua for a consideration of Rs. 80,000/-. It is further averred that full and final consideration of Rs. 80,000/- was paid to said Kartar Chand at the time of execution of the Agreement to Sell and the possession of the land was handed over to respondent by the appellant. Along with the suit, an application also came to be filed by respondent in terms of Order 39, Rule 1 and 2 CPC praying therein for-restraining respondent from interfering with the suit property. 3. The defendant-appellant herein caused his appearance in the Court below and filed his Written Statement to the main Suit as well as objections to the Civil Miscellaneous Application. Thereafter, the Court below, as is evident from the record after hearing the learned counsel for the parties, decided the application for interim relief vide its order dated 28/11/2011, thus, restraining defendant (appellant herein) from interfering with the suit property, except Kacha Kotha, which is alleged to be in possession of one Manga Ram. 4. Thereafter, the Court below, as is evident from the record after hearing the learned counsel for the parties, decided the application for interim relief vide its order dated 28/11/2011, thus, restraining defendant (appellant herein) from interfering with the suit property, except Kacha Kotha, which is alleged to be in possession of one Manga Ram. 4. Aggrieved by the Order dated 28th November 2011, the appellant has filed the present appeal mainly on the ground that in his Written Statement, he has denied the execution of any such Agreement to Sell, for which Specific Performance of Contract has been sought, and that he is still in possession of the suit land. It is further contended that Trial Court has passed the order-impugned without taking into consideration the entire material on record and while exercising its discretion has not acted judiciously. 5. Heard learned counsel for the parties and perused the record. 6. A suit, praying for a decree for Specific Performance of Contract, came to be filed in the Court below by respondent, averring therein that defendant in the suit, namely, Kartar Chand (appellant herein) executed an Agreement to Sell dated 24th March 2011 agreeing to sell 08 Marlas of land bearing Khasra 361 Min situated at Village Phalote Tehsil Kathua for a consideration of Rs. 80,000/-. it is further averred that full and final consideration of Rs. 80,000/- was paid to the said seller, namely, Kartar Chand, at the time of execution of Agreement to Sell and the possession of the suit land was also handed over to him. The plaintiff alongside his suit also filed an application for interim relief seeking a restraint order during the pendency of the suit, against the defendant not to interfere with his possession. 7. The cardinal principles to decide the application for interim relief are, 'existence of prima facie case', balance of convenience' and 'irreparable injury'. The plaintiff has annexed with his suit the Agreement to Sell dated 24th March 2011, which has been duly attested and notarised by the Public Notary. In the said document, the Vendor has categorically agreed to have received the entire amount of consideration and has further admitted that he has handed over the possession of the suit land to the Vendee on spot. In the said document, the Vendor has categorically agreed to have received the entire amount of consideration and has further admitted that he has handed over the possession of the suit land to the Vendee on spot. Therefore, in view of the said admission in the document, on which the suit of the plaintiff is based, the vendor is precluded from taking any other stand at least at this stage of the trial, which is yet at its infancy stage. Therefore, strong prima facie case exists in favour of the plaintiff, i.e. respondent herein. It is the settled law that, when a party lacks existence of prima facie case in his favour, the other two requirements such as balance of convenience and irreparable loss, lose their significance. However, if prima-facie case exists which is, otherwise, sine quo non for grant of interim injunction, it would be sufficient to exercise jurisdiction if one of the other two factors viz. balance of convenience and irreparable loss also exits. Plaintiff respondent having been prima facie put in possession, would be put to irreparable loss and inconvenience if his possession is not protected. Learned counsel for respondent in support of his contention has placed reliance on a judgement passed in a case titled Kashi Math Samsthan and Anr. v. Srimad Sudhindra Thirtha Swamy and Anr. reported in AIR 2010 SC 296 . It is appropriate to reproduce Paragraph No. 13 thereof hereunder "13. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore keeping this principle in mind, let us now see, whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court. In para 21 of the Judgment of the trial Court, it is found: "the words 'certain' and 'some' quoted above and 'when we are still in a position to carry on with the traditional duties', prima facie show that the 1st respondent has not surrendered all his rights, privilege and duties and that the 2nd petitioner has not been made as full fledged Mathadhipathi. As per the custom prevailing since continuous, vatu initiated into Sanyasa and named as successor, will become Mathadhipathi after the Mathadhipathi passes away." From the aforesaid finding of the trial Court, it is clear that the respondent No. 1 had not abrogated all his powers as Mathadhipathi in favour of the appellant No. 2 and he was only entrusted with certain powers. In para 22 of the Judgment of the trial Court, it was observed as follows:- "The following circumstances also go to support the version of the 1st respondent. The 2nd petitioner himself has addressed a letter dated 4/11/99 reads as follows: In view of the recent events, we have kindly decided not to involve in the matter's concerning the authority of Shri Samshtan (Ad-hikartha Vishayas) as well as Dharmic activities (Dharmic Vishayas) of the samaj. Therefore with pranamas, again and again we pray and request, to relive us as early as possible. This prima facie shows that the 2nd petitioner has been still recognizing the 1st Mathadhipathi, and therefore requested him to relieve himself from "certain activities." A careful reading of the aforesaid findings/observations made in para 22 of the judgment of the trial Court would show that the letter dated 4th of November, 1999 clearly enumerates the fact that the appellant No. 2 had wanted to be relieved from certain activities of the Math and he had in fact sought permission from the respondent No. 1 in this regard. Therefore, in our view, it was rightly held by the trial Court in the final Judgment that the appellant No. 2 continued to consider the respondent No. 1 as the Mathadhipathi of the Math even after the alleged proclamation of 1994. Therefore, in our view, it was rightly held by the trial Court in the final Judgment that the appellant No. 2 continued to consider the respondent No. 1 as the Mathadhipathi of the Math even after the alleged proclamation of 1994. The trial court again in para 24 had observed: "If all the circumstances are taken into consideration the irresistible conclusion that can be drawn at this stage is that, the 1st respondent has not abdicated all his powers and privileges as Mathadhipathi and only some powers and privileges have been conferred on 2nd petitioner. In view of the above discussion, I hold that the 2nd petitioner is not entitled for the injunction orders as claimed by him. (Emphasis supplied). In view of the aforesaid findings of the trial Court to the extent that appellant No. 2 was not entitled to the injunction order as claimed by him, it is difficult to find any illegality or infirmity with the findings of the trial court, as noted herein above, at least prima facie in respect of which, the High Court had also agreed. We are, therefore, of the view that the powers of the Mathadhipathi of the Math were not abdicated in favour of the appellant No. 2. It is well settled that such power of the Mathadhipathiship of the Math could devolve to any other person after the death of the existing Mathadhipathi or anyone else, who could succeed him as the Mathadhipathi of the Math according to the customs and traditions of the Math." 8. Viewed thus, there is no reason or occasion for this Court to interfere with the order passed by learned Additional District Judge, Kathua, dated 28.11.2011. As such, appeal, being devoid of any merit is dismissed, accordingly. No order as to costs. However, it is made clear that no finding of this Court in this order shall have any bearing on the merits of the case.