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2018 DIGILAW 158 (JK)

Ab. Rashid Wani v. Altaf Hussain

2018-03-14

ALOK ARADHE

body2018
JUDGMENT : Alok Aradhe, J. 1. In this petition under Section 104 of the Constitution of the State of Jammu and Kashmir, the petitioners inter alia have assailed the validity of the order dated 07.03.2018 passed by lower Appellate Court, Jammu by which order granting ex parte injunction dated 22.02.2018 passed by the Trial Court has been upheld. The petitioners also seek probe into the facts and circumstances leading to by-passing of caveat petition filed by petitioners on 17.01.2018 and transfer the appeal filed by the petitioners from the Principal District Judge, Jammu to the Court of 2nd Additional District Judge, Jammu, that too without issuing notice in order to streamline the justice dispensation system. 2. Facts giving rise to the filing of the writ petition briefly stated are that petitioner No. 1 is the attorney holder of petitioners 2 and 3. The petitioners No. 2 and 3 claim to be owner and in actual physical possession of land ad measuring 5 kanals comprising Khasra No. 93 min, Khata No. 612 and Khewat No. 225 situated at ward No. 71, Sidhra, Jammu. The aforesaid land was purchased by the petitioners 2 and by two separate sale deeds dated 26.02.2016 and 16.03.2016 which was duly registered by Sub-Registrar Excise Magistrate, Jammu. Thereafter, the names of the petitioners No. 2 and 3 were duly mutated in the revenue records. The petitioners No. 2 and 3 submitted an application on-line, to the Commissioner, Municipal Corporation, Jammu for granting injunction for construction of a Commercial building on the aforesaid land on 06.07.2016. After obtaining permission of various departments, the Building Operations and Controlling Authority in its meeting held on 04.03.2017 issued no objection certificate in favour of the petitioners No. 2 and 3. It is the case of the petitioners that respondents being neighbours are very well known to the petitioners and respondent No. 1 being a practicing lawyer, the petitioners used to have his guidance and advice for preparing the documents required for obtaining permission/ approval for construction of shopping mall on the land in question. The petitioners filed a caveat on 17.01.2018 on the ground that they are going to raise construction on their own land after getting due permission and if any proceeding is initiated against the caveators, they should be given the opportunity of being heard before passing of any orders against them. 3. The petitioners filed a caveat on 17.01.2018 on the ground that they are going to raise construction on their own land after getting due permission and if any proceeding is initiated against the caveators, they should be given the opportunity of being heard before passing of any orders against them. 3. A suit for permanent prohibitory injunction was filed on 21.02.2018 by one Shamas Ali in respect of land measuring 2 kanals and 10 marlas forming part of Khasra No. 99/1 situated at Sidhra, Tehsil and District Jammu. The petitioners had no connection with the aforesaid land. However, the caveat filed by the petitioners was tagged with the aforesaid civil suit in which no interim order was granted and the case was fixed for 07.03.2018. Thereafter on 21.02.2018 itself, second suit was filed in which a declaration was sought that the petitioners are raising construction of a commercial building on the agricultural land admeasuring 5 kanals forming part of Khasra No. 93 min, Khata No. 612 min and Khewat No. 225 situated at ward No. 71, Sidhra Jammu. In the aforesaid civil suit, declaration was sought that the aforesaid construction was illegal and no permission has been obtained. The plaintiffs in the aforesaid suit also sought relief of mandatory injunction directing the defendants to demolish the construction raised by them and also sought the relief of permanent prohibitory injunction restraining the defendants namely the petitioners from obstructing the free flow of light, air and sun to the house of the petitioners. 4. In the aforesaid civil suit, the Trial Court passed an ex parte order of injunction on 22.02.2018. Being aggrieved, the petitioners preferred an appeal. However, the appeal preferred by the petitioners was also dismissed. In the aforesaid factual background, the petitioners have approached this Court. 5. Learned Senior Counsel for the petitioners while inviting attention of this court to paragraph 9 of the plaint submitted that the respondents/plaintiffs in the subsequent suit had stated that the cause of action had accrued to them in the month of January, 2018 and it was further submitted that the defendants started the construction work in the month of August, 2017 and the suit was filed on 21.02.2018. It is further submitted that the Trial Court while granting the ex parte injunction did not appreciate the facts pleaded by the respondents in Paragraph 9 of the plaint and did not give any notice to the petitioners before issuing the ex parte order of injunction. It is further submitted that no reasons have been recorded by the Trial Court for its opinion that the object of grant of injunction would be defeated by delay. It is further submitted that provisions of Order 39 Rule 3(a) & (b) of the CPC have also not been complied with by the respondents inasmuch as the respondents have to deliver the petitioners a copy of the affidavit filed in support of the application, copy of the plaint as well as copy of the documents on which the respondents had relied. It is further argued that summons were not served on the petitioners on 27.02.2018 and were allegedly served on the servant of the petitioners. It is also submitted that an application for transfer was filed, thereupon the Principal District Judge, Jammu transferred the proceeding to the 2nd Additional District Judge, Jammu. It was further submitted that caveat filed by the petitioners was deliberately tagged with a wrong case. It is also submitted that respondents were neighbours of the petitioners were very well aware about the construction which was being raised by the respondents especially when the construction had been raised up to second story. It is also argued that in fact the respondents have filed the subsequent suit with a mala fide intention as the respondents wanted to sell their house to the petitioners which the petitioners had agreed to purchase between a sum of Rs. 1.5 crores to Rs. 1.75 crores, as per the valuation reports submitted by Architects from Jammu as well as Srinagar in which the value of the building was quantified at Rs. 67.50 lakhs and Rs. 72.39 lakhs. It is further submitted that in the month of August, 2017, the petitioners have started construction and therefore the Trial Court ought to have given a notice. It is also submitted that respondents have not approached the Court with clean hands. 6. 67.50 lakhs and Rs. 72.39 lakhs. It is further submitted that in the month of August, 2017, the petitioners have started construction and therefore the Trial Court ought to have given a notice. It is also submitted that respondents have not approached the Court with clean hands. 6. It is also submitted that in the facts and circumstances of the case, the Trial Court was under a legal obligation to issue prior notice to the petitioners as there was no urgency involved in the matter in issue and while passing the order, the Trial Court has not recorded any satisfaction that delay caused in passing the same would defeat the object of not granting injunction. It is further submitted that caveat ought to have tagged with the subsequent suit which was filed. It is also submitted that the respondents have resorted to unethical means and have indulged in mis-management of justice dispensation system and therefore they are not entitle to any relief. It is further submitted that once the caveat was lodged and if a party is not heard, the order passed by the Court is invalid. It is also submitted that an appeal against the ex parte order of injunction is maintainable. It is also submitted that alternatively the petitioners are ready to furnish an undertaking that in the event of success of the respondents in the civil suit, the petitioners shall remove the construction at their own risk and consequences. In support of the aforesaid submission, reference has been made to the decision of the Supreme Court in the cases of Shiv Kumar Chadha vs. Municipal Corporation of Delhi and Others, (1993) 3 SCC 161 , A. Venkatasubbiah Naidu vs. S. Chellappan and Others, 2000 (7) SCC 695 , J&K State Forest Corporation vs. Nazir Ahmad Baba and Others, 2009 (3) JKJ 111 , Ghausia Memorial Trust and Others vs. Alflah Gousia Muslim Trust and Others, 2010 (2) JKJ 266 : 2010 (8) JKJ 444 , Astral Traders vs. M/s. Haji Mohammad Shaban Dar and Others, 1982 KLJ 325, Eokila Kaliamoorthy vs. K. Mani and Others, 2010 (1) CTC 799 . 7. On the other hand, Mr. Abhinav Sharma, learned counsel for the respondent No. 1 submitted that the present writ petition has become infructuous by efflux of time. It is further submitted that the next date of hearing before the Trial Court is 12.03.2018. 7. On the other hand, Mr. Abhinav Sharma, learned counsel for the respondent No. 1 submitted that the present writ petition has become infructuous by efflux of time. It is further submitted that the next date of hearing before the Trial Court is 12.03.2018. However, the petitioner appeared before the Trial Court on 12.03.2018 and did not file the written statement. It is also submitted that the petitioners did not avail of the alternative remedy provided under Order 39 Rule 4 of the Code of Civil Procedure. It is also argued that the in the facts and circumstances of the case, supervisory jurisdiction under Section 104 of the State of J&K Constitution cannot be invoked as the order passed by the Trial Court as well as Lower Appellate Court does not suffer from any infirmity. It is further argued that the Caveat was not filed by the petitioners as required under Section 148-A of the Code of Civil Procedure and there was not need to serve the copy of the Caveat filed on behalf of the petitioners. It is also submitted that the Trial Court has passed the order in exercise of power under Order 39 Rule 3 of the CPC and has assigned valid and cogent reasons for granting injunction and even though urgency must not have been expressed in so many words in the order yet the requirement of Order 39 Rule 3 as well as Clause (a) and (b) have been fulfilled at least by implication in the impugned order. It is also submitted that there is no delay on the part of the respondents in filing the civil suit. It is also pointed out that even though in paragraph 6 of memo of appeal, it has been stated by the petitioners that they learnt that the respondents are going to file the suit, yet the Caveat was filed against the public in general and no notice of caveat application was given to the petitioners. In support of aforesaid submissions, reference has been made to the decisions in the cases of A. Venkatasubbiah Naidu vs. S. Chellappan and Others, 2000 (7) SCC 695 , Mohd. Lateef vs. Ravinder Singh and Others, 2015 (1) JKJ 531 , Raj Kumar Dubey vs. Anil Kumar Dubey and Others, 2014 (2) JKJ 196 and In Re: Apsara Theatre, Bijapur, AIR 2000 Karnataka 389. 8. Mr. Lateef vs. Ravinder Singh and Others, 2015 (1) JKJ 531 , Raj Kumar Dubey vs. Anil Kumar Dubey and Others, 2014 (2) JKJ 196 and In Re: Apsara Theatre, Bijapur, AIR 2000 Karnataka 389. 8. Mr. Vikram Sharma, learned counsel for respondent No. 2 has pointed out that the caveat has been filed by the two petitioners and one Abdul Rashid Wani who is the petitioner was not the caveator. It is further submitted that petitioners have sought relief of quashment of order of transfer of proceeding which cannot be granted in this petition as the petitioners have appeared before the Lower Appellate Court and argued the appeal before the court, where the proceeding was transferred. It is further submitted that no case of interference in exercise of supervisory jurisdiction is made out. In support of his submissions, reference has been made to the decision of the Supreme Court in the case of Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil, (2010) 8 SCC 239. 9. By way of rejoinder/reply, learned senior counsel for the petitioners submitted that the arguments of the respondents proceed on misinterpretation of law laid down in AIR 2000 SC 3032 . In this connection, learned senior counsel has invited the attention of this court to para 11 of the report. It is further submitted that the caveat application was filed by one of the two persons who were owners of the land. 10. I have considered the submissions made by learned counsel for the parties and have perused the record. In order to adjudicate the controversy involved in this writ petition, the twin issues which emerge for consideration are as follows: (i) Whether in the fact situation of the case, the Trial Court was justified in invoking the power under Order 39 Rule 3 of the Code of Civil Procedure; (ii) Whether the appeal against the Order passed by the Trial Court was maintainable before the Lower Appellate Court? The power to grant an injunction is undoubtedly discretionary relief which has to be exercised on sound principles of law, namely on plaintiffs establishing, prima facie case in his favour, balance of convenience and irreparable injury. The power to grant an injunction is undoubtedly discretionary relief which has to be exercised on sound principles of law, namely on plaintiffs establishing, prima facie case in his favour, balance of convenience and irreparable injury. Order 39 Rule 3 CPC circumscribes the power of the court to grant an ex parte injunction except in cases where in case the injunction is not granted, the object of granting the same, would be defeated by the delay. At this stage, it is relevant to take note of Order 39 Rule 3 of the CPC which reads as under: 39(3). Before granting injunction Court to direct notice to opposite party - The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant: (a) To deliver to the opposite party, or to send to him by registered post immediately after the order granting the injunction has been made, a copy of the application for injunction has together with: (i) A copy of the affidavit filed in support 6f the application. (ii) A copy of the plaint. (iii) Copies of the documents on which the applicant relies. (b) To file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent. The proviso appended to Order 39 Rule 3 provides that where it is proposed to grant injunction without notice of the application to the opposite party, the court shall record reasons for its opinion that the object of granting the injunction would be defeated by the delay and require the applicant to comply with the requirements mentioned in Clause (a) and (b) of Order 39 Rule 3 CPC. Order 39 Rule 3-A of the CPC reads as under: 3-A. Court to dispose of application for injunction within thirty days:- Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavor to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable to do so it shall record its reasons for such inability. Thus from close scrutiny of Order 39 Rule 3-A of CPC, it is axiomatic that where injunction has been granted without notice to the opposite party, the Court shall make an endeavor to finally dispose of the application within 30 days from the date on which injunction was granted and where it is unable to do so, it shall record its reasons for such inability. 11. The Supreme Court in the case of Shiv. Kumar Chadha vs. Municipal Corporation of Delhi and Others, (1993) 3 SCC 161 has held that a party is not entitled to an order of injunction as a matter of right as the same is within the discretion of the Court and such discretion has to be exercised in favour of the plaintiff only it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. It has also been held that the power to grant injunction is an extraordinary power which had to be exercised taking into account the facts and circumstances of the particular case and the Courts have to be more cautious when the said power it being exercised without notice of hearing to the party who is to be affected by the order so passed. In A. Venkatasubbiah Naidu vs. S. Chellappan and Others, 2000 (7) SCC 695 , it has been held that if the Court which passed an order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in Clause (a) and (b) of Rule 3 of Order 39 of the CPC, in such a case an order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. It has also been held that an aggrieved party can prefer an appeal only against the order passed under Rule 1, 2, 2-A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. In a case, where the mandate contained in Order 39 Rule 3-A of the Code is violated. In order words, a party can resort to the remedy of an appeal only in a case where the Trial court does not decide the application for injunction within a period of thirty days. 12. In the backdrop of the aforesaid well settled legal proposition, the facts of the case may be seen. In the instant case, an ex parte order of injunction was granted on 22.02.2018. Being aggrieved, the petitioners before expiry period of thirty days preferred an appeal under Order 43 Rule 1 of CPC before the Lower Appellate Court which was not maintainable in view of law laid down in the case of A. Venkatasubbiah Naidu vs. S. Chellappan and Others, 2000 (7) SCC 695 . Therefore, the order passed by the Lower Appellate Court is hereby quashed. Though the Trial Court has not expressly stated the reasons nor has required the respondents to comply with the requirements contained in Clause (a) and (b) of Order 39 Rule 3 CPC, yet no fault can be found with the order in view of law down by the Supreme Court in the case of A. Ventatasubbiah Naidu (supra) as the requirement contained in Order 39 Rule 3 and Clause (a) and (b) of the Code of Civil Procedure has been fulfilled by implication. 13. Since the period of 30 days is yet to expire which will expire on 24.03.2018, therefore I deem it appropriate to grant the liberty to the petitioners to file an application seeking vacation of the ad interim ex parte injunction dated 22.02.2018. Needless to state that if such an application is filed within two days from the date of receipt of certified copy of the order passed today, the Trial Court shall decide the application preferred by the petitioners after hearing the parties by a speaking order on or before 24.03.2018. For the aforementioned reasons, it is not necessary to deal with various other contentions of learned counsel for the parties. For the aforementioned reasons, it is not necessary to deal with various other contentions of learned counsel for the parties. However, in case the petitioners are aggrieved with regard to tagging of their caveat with another suit, they would be at liberty to approach the Principal District Judge, Jammu by making a complaint on administrative side. 14. With the aforesaid directions, the petition stands disposed of along with connected MP. 15. Let a copy of this order be supplied to learned counsel for the parties under the seal and signatures of the Bench Secretary of this Court.