JUDGMENT : 1. Impugned in the Civil First Miscellaneous Appeal on hand, bearing CIMA no.231/2015, is the order dated 8th September 2015, passed by the learned Principal District Judge, Srinagar on the application for grant of the ad interim assistance and the application for vacation of ad interim assistance, on the grounds set out therein. Concomitant with CIMA no.231/2015 is a writ petition, being OWP no.1562/2015, in which the petitioner seeks quashment of the order bearing no.362 of 2015 dated 6th June 2015 passed by the respondent no.3 (Divisional Town Planner (Right), Srinagar Municipal Corporation) with a direction to the respondents to restrain the respondents from causing any interference in the two storeyed residential house along with attic raised by the petitioner in pursuance to the building permission issued by the respondent no.2 vide Order no.1474 of 2015 dated 2nd February 2015. 2. The case set up by the appellant is that a single storeyed residential house along with the land underneath and appurtenant thereto situated at Channapora, Srinagar, owned and possessed by the appellant, was severely damaged due to the devastating floods of September 2014. Reconstruction of the residential house required solicitation of permission that he did. Permission was vouchsafed by the Srinagar Municipal Corporation in favour of the appellant for the reconstruction of the residential house. Raising of the construction was objected to by the respondent no.5. Acting on the complaint of the respondent no.5, the respondent SMC tried to take recourse to the demolition, constraining him to file a suit for injunction before the learned Sub Judge (Municipal Magistrate) Srinagar, in which an order was passed preventing demolition of the structure on spot. Nevertheless, the respondent no.5 filed a suit for mandatory injunction seeking demolition of the construction raised by the appellant on the plea that the appellant could not raise construction of two storeyed residential house because prior to the floods, he was in possession and ownership of a single storeyed residential structure. Claiming in the application that he expressly indicated that instead of the single storeyed damaged house, he be permitted to raise the construction of a two storeyed house with attic. Prior to granting the permission, the appellants claims, that the municipal authorities visited the spot and noted that a single storeyed residential house was existing on the spot before the damage caused due to the floods. Prior to granting the permission, the appellants claims, that the municipal authorities visited the spot and noted that a single storeyed residential house was existing on the spot before the damage caused due to the floods. The appellant maintains that he was within his rights to proceed ahead with the construction but on account of the suit filed by the respondent no.5, the construction beyond first floor was kept on hold due to interim direction passed by the learned District Judge, Srinagar, which direction was made absolute vide impugned order dated 8th September 2015. 3. Mr Mohammad Yaqoob Wagey has also filed a writ petition, being OWP no.1562/2015. Pursuant to the permission granted by the respondent SMC, the petitioner/appellant claims that he raised two storeyed house and roofed the same with CJI sheets. After completion of the two storeyed house, the respondent no.3 issued impugned order no.362 of 2015 dated 6th June 2015, keeping in abeyance the earlier building permission granted in favour of the appellant/petitioner. 4. By order dated 11th November 2016, passed by a Coordinate Bench of this Court in CIMA no.231/2015, the writ petition (OWP no.1562/2015) was directed to be listed with the appeal (CIMA no.231/2015). The Chief Enforcement Officer, SMC, Karan Nagar, Srinagar, was directed to make spot inspection of the construction and submit his report as to whether the appellant had raised the construction in tune with the permission granted by the authorities. 5. The report has been filed by the respondent no.3, in which he states that the site had already been inspected on 21st November 2016 by the then Chief Enforcement Officer along with Ward Officer concerned and placed on record copy of the detailed factual report so submitted by the then Chief Enforcement Officer. The report reveals that the two storeyed residential house has been raised under Fast Track Flood Building Permission Order no.1474 of 2015 dated 2nd February 2015, with some minor deviations. 6. Reply in OWP no. 1562/2015 has been filed by the respondents 2 to 6 and 7. The report reveals that the two storeyed residential house has been raised under Fast Track Flood Building Permission Order no.1474 of 2015 dated 2nd February 2015, with some minor deviations. 6. Reply in OWP no. 1562/2015 has been filed by the respondents 2 to 6 and 7. The respondents 2 to 6, in their reply, insist that a large number of houses were damaged in the devastating floods of September 2014 and the State, in order to ameliorate the hardships which were likely to be faced by the denizens with respect to seeking requisite building permission for reconstruction or repair of such damaged residential houses, issued a Government Order no.265-HUD of 2014, whereunder a mechanism for grant of Fast Track Building Permission to such persons, was notified. The petitioner, being one of such persons, applied for and was granted building permission for reconstruction of his residential building vide Order no.1474 of 2015 dated 2nd February 2015. The permittee has to raise the construction strictly congruent to the existing structure. Any deviation therefrom shall entail cancellation of the Fast Track Permission. Since the permission granted is on Fast Track Basis, an affidavit is obtained from the applicant that he will not deviate from the original structure, which had been damaged due to the floods. Accordingly, an affidavit was obtained from the present petitioner to the effect that he will reconstruct the said house on its existing position. However a complaint was received from Mr Abul Majid Bhat and Mr Bashir Ahmad Beigh, who happen to be the neighbours of the petitioner, by the respondent SMC, in which it was alleged that the permittee, i.e. the petitioner, had in reality a single storeyed structure before the devastating floods of September 2014, and that the petitioner had fraudulently obtained Fast Track Permission for raising two storeyed residential house by giving false affidavit before the respondent SMC. Taking cognisance of the complaint, so filed against the petitioner, the Fast Track Permission granted in favour of the petitioner was kept in abeyance vide Order no.365 of 2015 dated 6th June 2015, till further orders. The petitioner and the complainant filed suits against each other before the courts of the learned Municipal Magistrate and the learned Principal District Judge, Srinagar, with respect to the said property, which are pending as on date. The petitioner and the complainant filed suits against each other before the courts of the learned Municipal Magistrate and the learned Principal District Judge, Srinagar, with respect to the said property, which are pending as on date. The respondent SMC tried to verify the veracity of the contents of the complaint, i.e. as to whether there existed a single storeyed structure or double storeyed structure at the spot before the devastating floods of September 2014, but since the petitioner had already commenced the construction of the structure in question at the time when the respondent SMC tried to enquire about the veracity of the contents of the complaint, it was not possible to ascertain the factual reality as it existed before the floods of September 2014. 7. The respondent no.7, in his reply, insists that he is owner in possession of land which is located at 43-A, Madina Bagh, Chanapora, Srinagar and that the petitioner is also the owner in possession of a single storeyed house along with land measuring 04 Marlas approximately. On the side of the house of the respondent no.7, the petitioner’s house had a blind walling towards the north-side and on the western-side the petitioner had observed a setback of around 4 ½ feet. The single storeyed house did not in any way invade upon easementary and others rights of the respondent no.7. The petitioner demoilished his single storeyed house which as alleged by him was damaged due to floods of September 2014 and wished to reconstruct the existing house, but he had assured the respondent no.7 that he would raise the construction strictly in accordance with the dimensions/specification of the earlier one, but he did not observe the setbacks strictly as agreed. The respondent no.7, accordingly, approached the authorities and obtained a copy of the application of the petitioner moved before the respondent SMC, where he has falsely sworn an affidavit that he had a two-storey house prior to floods. Surprising part is that the damage report annexed with the said application given by the police station Chanapora is showing single storeyed house and in his application as well as in the affidavit he has mentioned double storeyed house. Surprising part is that the damage report annexed with the said application given by the police station Chanapora is showing single storeyed house and in his application as well as in the affidavit he has mentioned double storeyed house. It is vehemently averred that can a typographical error occur twice and that too so simultaneously, is to be answered by the petitioner which shows prima facie that it was a deliberate attempt to obtain a fraudulent permission. When the respondent no.7 came to know of the illegality by way of which the petitioner was constructing a double storeyed house in violation of the norms, he immediately filed a complaint before the respondent SMC. The Ward Officer on taking cognisance of the complaint, inquired the matter and submitted a detailed report as to how the petitioner violated the norms of Government Order no.265-HUD of 2014 dated 8th October 2014, which was meant only for fast track reconstructions/repairs of flood affected structures with exactly same specifications as exited in the earlier structure existing prior to floods. However, the petitioner under the garb of the said government order had obtained the permission for construction of double storeyed house in place of a single storey fraudulently. The petitioner, it is contended, misused the fast track permission which entails the consequences of demolition of second storey for committing deviation of the aforesaid Government order dated 8th October 2014. On coming to know of the deviations committed by the petitioner, the respondent SMC took action against him and he having aggrieved of that action approached the court of learned Municipal Magistrate, Srinagar, with a suit for mandatory injunction for not causing interference with the construction that was being carried on by him. The respondent no.7 moved an application in the said suit for his impleadment as party defendant, which was allowed. The respondent no.7 also filed a suit for cancellation of permission granted in favour of the petitioner, before the learned Principal District Judge, Srinagar. On thorough consideration, the impugned order dated 8th September 2015 has been passed. 8. I have heard learned counsel for the parties and considered the matter. 9. The respondent no.7 also filed a suit for cancellation of permission granted in favour of the petitioner, before the learned Principal District Judge, Srinagar. On thorough consideration, the impugned order dated 8th September 2015 has been passed. 8. I have heard learned counsel for the parties and considered the matter. 9. Mr Manzoor A. Dar, the learned counsel representing the appellant/ petitioner, to bolster the case set up by the appellant/petitioner, has stated that the impugned order dated 8th September 2015 has been passed by the learned Trial Court in a slipshod manner without appreciating the core of the controversy involved in the matter inasmuch as the Trial Court has proceeded on the assumption that the appellant had applied for construction of single storeyed structure. The Trial Court has failed to appreciate that the construction in question had already been completed up to two storey and only attic portion was to be constructed and it was for that purpose that modification was sought with a view to permit the petitioner to get his building covered and that the impugned order had an effect of jeopardizing the rights and interests of the appellant and his family comprising of minor children, which was likely to be exposed to the furry of winter. 10. As regards pleadings taken in the writ petition (OWP no.1562/2015), the learned counsel appearing for the petitioner states that the petitioner has constructed the two storeyed residential house along with attic after obtaining the prior permission from the respondent SMC and after receiving some false and frivolous complaint the respondent no.3 has, after lapse of four months, passed the impugned order, keeping the building permission order in abeyance. According to the learned counsel neither the Commissioner of SMC nor the Divisional Town Planner of SMC is competent to keep the building permission in abeyance. As per the Municipal Corporation Act, 2000, neither the Commissioner of SMC nor is any other official competent to keep the building permission in abeyance and therefore, the impugned order is bad in the eye of law. As per the Municipal Corporation Act, 2000, neither the Commissioner of SMC nor is any other official competent to keep the building permission in abeyance and therefore, the impugned order is bad in the eye of law. Had there been any need to keep the permission in abeyance under Section 248 of the Municipal Corporation Act, but before keeping the permission in abeyance the Commissioner was bound to provide an opportunity of being heard to the petitioner, but in the present case, no such opportunity has been given by the respondent SMC to the petitioner, as such, the principle of natural justice has been violated. His further submission is that the Commissioner, SMC, pursuant to Section 248 of the Municipal Corporation Act, is competent to keep the building permission in abeyance, but in the instant case the impugned order has been passed by the incompetent authority who has no powers for the same. Learned counsel also states that the construction in question has not caused any comparative hardship or mischief inconvenience to the private respondent. 11. Per contra learned counsel for the respondent SMC vehemently states that since the writ petition involves essentially a disputed question of fact, coupled with the fact that the parties are already before the civil courts, it would be appropriate to direct the parties to prove their respective cases before the civil courts inasmuch as the disputed questions of fact cannot be adjudicated upon in writ proceedings. 12. Learned senior counsel representing the private respondent, after reiterating the submissions made in the reply to the writ petition, stoutly states that none of the rights of the petitioner have been violated. He states that the petitioner has challenged the action of the respondent SMC, which they are duty bound to take under law on the complaint of the private respondent, whose rights have been violated by the petitioner, which fact he had concealed from this Court. 13. In Civil First Miscellaneous Appeal, bearing CIMA no.231/2015, the appellant/petitioner challenges the order dated 8th September 2015, passed by the Principal District Judge, Srinagar, on an interim application concomitant with a civil suit titled Abdul Majeed Bhat v. Srinagar Municipal Corporation and others. In the said suit the present appellant, namely, Mohammad Yaqoob Wagay, is defendant no.5 and private respondent here, namely, Abdul Majeed Bhat, is the plaintiff. In the said suit the present appellant, namely, Mohammad Yaqoob Wagay, is defendant no.5 and private respondent here, namely, Abdul Majeed Bhat, is the plaintiff. The subject matter of the aforesaid suit is raising of a two storeyed residential house by the appellant instead of a single storey. The appellant has on the basis of permission granted vide Order no.1474 of 2015 dated 2nd February 2015, issued by the office of the Competent Authority for Granting Building Permission (Commissioner, Srinagar Municipal Corporation), has already raised two storeyed residential house, which fact is also borne from the compliance report submitted by the Chief Enforcement Officer, Srinagar Municipal Corporation, in pursuance of a direction passed by this Court on 11th November 2016. The said compliance report reveals that on the date of inspection viz. 21st November 2016, a two storeyed residential house had been existing there. The case set up by the private respondent before the court below is that towards the property, the present appellant had a house with blind walling and on the western side the appellant had observed setback of around 4 ½ feet and that the single storeyed house of the appellant did not in any way invade or offend the easementary and other rights of the private respondent. His further case is that the appellant raised two storeyed residential house under the garb of Fast Track Building Permission granted by the respondent SMC as the appellant had alleged that his residential house had damaged due to the floods of September 2014. The said building permission, according to the private respondent, has been obtained by the appellant fraudulently, which forced him to complain thereabout before the respondent SMC and simultaneously file a civil suit for decree of perpetual and mandatory injunction, before the court of learned Principal District Judge, Srinagar, directing the respondent SMC to demolish the structure raised by the appellant on the basis of permission obtained by him, with further direction to restrain the respondent SMC from granting permission for reconstruction under the Fast Track (Flood Case) in favour of the appellant and also to refrain the appellant from causing any damage or injury to the property of the private respondent. 14. 14. The impugned order dated 8th September 2015, on its bare perusal, divulges that the appellant has also approached the court of learned First Civil Subordinate Judge (Municipal Magistrate) Srinagar with a suit for mandatory and prohibitory injunction (Annexure R-7 to Reply of the private respondent), in which an interim order dated 4th June 2015 was passed with a direction to the respondent SMC not to cause any undue interference in the construction without following due course of law, provided the construction is being raised strictly in accordance with the valid permission granted by the competent authority. The appellant is contented of the said direction passed by the learned Municipal Magistrate, Srinagar. Concurrently, let us have a glance of impugned order dated 8th September 2015. For that purpose, suffice it would be to reproduce concluding paragraph thereof: “Accordingly I am of the opinion that grant of interim assistance is warranted in favour of the applicant and against non applicant no 5. Accordingly subject to final outcome of the suit, the non-applicant No.5 is directed to forebear from making further construction pending trial. Ad-interim direction passed on 05.06.2015 stands modified accordingly. The non applicants 1 to 4 are left at liberty to proceed under law vis-à-vis construction in question raised by the non-applicant no 5. Accordingly the application from [for] grant of interim assistance moved by plaintiff/applicant s accepted and application moved for vacation of interim direction by non-applicant No.5 shall stand rejected. Be made part of main file.” 15. What emerges from the above extracted passage of the impugned order dated 8th September 2015 is that the interim direction is two-pronged. One is that the present appellant has been forborne from making further construction pending trial. And second is that the respondent SMC has been left free to proceed under law qua the construction in question raised by the non-applicant no.5/present appellant. 16. Insofar as the first part of the impugned order dated 8th September 2015, viz. restraining the appellant from further construction, is concerned, the learned Trial Court, as is coming to fore from the impugned order, has discussed in length the subject-matter of the case, more particularly the facet of granting or not granting ad interim injunction and ramifications thereof. Insofar as the second part of the impugned order, viz. restraining the appellant from further construction, is concerned, the learned Trial Court, as is coming to fore from the impugned order, has discussed in length the subject-matter of the case, more particularly the facet of granting or not granting ad interim injunction and ramifications thereof. Insofar as the second part of the impugned order, viz. giving liberty to the respondent SMC to proceed under law qua the construction in question raised by the appellant, is concerned, the learned Trial Court could not have stopped the respondent SMC from taking recourse to the law governing and regulating the field, viz. the Municipal Corporation Act and Rules made thereunder, or for that matter any other law governing the subject-matter. It is made clear here that in the event the respondent SMC proceeds ahead in the matter, they have to resort to and follow the implements strictly as envisioned and stipulated under and in terms of the Municipal Corporation Act and Rules made thereunder or any other rule/law occupying the field. In case the respondent SMC resorts to any other practice impermissible under law, in such situation the appellant would be free to fall back upon the remedies as are available to him under the law and that he has not been, in this regard, precluded or prevented by the learned Trial Court in terms of the impugned order. In that view of matter, the impugned order dated 8th September 2016 need not be interfered with. 17. The civil suit filed by the private respondent (Abdul Majeed Bhat) relates to the construction raised by the appellant. He, inter alia, has implored for demolition of the structure raised by the appellant on the basis of permission obtained by the appellant as according to the private respondent, the permission has been obtained by the appellant by resorting to fraud, perjury and suppression of material facts. The private respondent’s contention is that the construction in question is going to cause damage to his property, so he sought in the interim application restraint order against the appellant. The private respondent’s contention is that the construction in question is going to cause damage to his property, so he sought in the interim application restraint order against the appellant. The learned Trial Court has, by the impugned order dated 8th September 2015, after going through the pleadings and after hearing the learned counsel for both parties, restrained the appellant from raising further construction, which, given the civil suit filed by the private respondent, was and is essential because in the event such restraint is not put, the appellant would be free to raise the further construction and by that action of the appellant, the suit of the private respondent would become infructuous and redundant. Thus, the learned Trial Court has rightly forborne the appellant from making ‘further construction’. It cannot be heard saying from the mouth of the appellant that he is yet to raise the construction according to the permission that has been kept in abeyance, but the fact of the matter obtaining on the spot is that two storey structure/construction has already been raised by the appellant and in the event he is permitted to raise and go ahead with further construction that would amount to sheer abuse of process of the court and the law. 18. Granting or refusing temporary injunction, it is settled legal position, rests on the sound exercise of discretion of the Courts, and such exercise of discretion cannot be lightly interfered with by the Appellate Court unless it is shown that such exercise of discretion is unreasonable or capricious. The area of interference of discretionary orders passed by the courts below in exercise of discretion vested in them, by the Appellate Court in appeal against such orders, although, not so much restricted, still it is not as wide as the normal and ordinary appellate powers of an appellate court in dealing the appeals, the power is indeed very much and restricted in its scope. The Court is to consider whether prima facie case has been made out by the plaintiff which needs adjudication at the trial and prima facie should not be confused with prima facie title. While considering the question of prima facie case, it is not to be confused with prima facie title. The Court is to consider whether prima facie case has been made out by the plaintiff which needs adjudication at the trial and prima facie should not be confused with prima facie title. While considering the question of prima facie case, it is not to be confused with prima facie title. What is required is that the plaintiff has to show that he has bona fide raised a substantial question, which needs to be adjudicated at the trial of the suit. The plaintiff is, thus, required to prima facie establish that in the event of non-interference by the Court, it will result in irreparable injury and substantial loss. While considering irreparable injury, comparatively which of the parties would be put to more or substantial mischief in the event of refusal to grant a temporary injunction and if the Court considers that the subject-matter of the suit must be maintained status quo, then discretion must be exercised in favour of the party seeking temporary injunction, so that the subject-matter of the suit in dispute can be preserved by directing to the party maintain status quo. Having said so, the impugned order dated 8th September 2015 does not warrant any interference and as a sequel of which, the Appeal (CIMA no.231/2015) is dismissed. Interim direction if any, shall stand vacated. 19. Qua the reliefs beseeched for by the petitioner (Mohammad Yaqoob Wagay) in the writ petition, being OWP no.1562/2015, the petitioner, given the above discourse, is not entitled to any relief, because the learned Trial Court (Principal District Judge, Srinagar), has already directed the respondent SMC to proceed in the matter relating to construction in question raised by the appellant in strict accordance with the law governing and regulating the field. Thus, it cannot be heard saying from the petitioner that the Trial Court or for that matter by the impugned Order of Abeyance bearing no.362 of 2015 dated 6th June 2015, passed by the respondent no.3, the respondent SMC has been given freehand to demolish the construction in question. In case the respondent SMC contemplate to take any action against the petitioner vis-à-vis the construction in question, they have to follow and comply the law governing and regulating the field strictly. In case the respondent SMC contemplate to take any action against the petitioner vis-à-vis the construction in question, they have to follow and comply the law governing and regulating the field strictly. If, however, the respondent SMC does or contemplate to do otherwise and contrary to what law ordains, in such situation the petitioner would be free to avail the appropriate remedy as available to him under law inasmuch as he is not precluded or prevented either by the learned Trial Court or for that matter, whatever the discourse made herein above has not and will not impede or disqualify him from availing apropos remedy as is/are available to him under law. 20. The cumulative effect of the above discussion is that the writ petition on hand, bearing OWP no.1562/2015, lacks in merit and is accordingly dismissed. Interim direction if any, shall stand vacated. 21. Record be sent down.