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2021 DIGILAW 559 (JK)

Iqbal Bakshi v. State of JK

2021-10-25

ALI MOHAMMAD MAGREY

body2021
JUDGMENT : MA No.184/2014: 1. This Civil Miscellaneous Appeal is directed against the Order dated 25th of August, 2014 passed by the Court of learned Principal District Judge, Ganderbal (hereinafter referred to as the “trial Court”) in the suit titled ‘Nazir Ahmad Bakshi & Ors. V. State of JK & Ors.’, thereby vacating the earlier Order of status quo dated 15th of July, 2014 passed in the interim relief application filed by the Plaintiffs/ Appellants herein alongside the main Suit. 2. The brief upshot of the facts relevant for determination of this appeal, as would emerge from the pleadings on record, is that the Appellants, way back in the year 2013, filed a Suit for permanent and mandatory injunction with respect to land measuring 04 Kanals covered under Survey No. 181 Min; as well as land measuring 04 Kanals falling under Survey No. 181 (03 Kanals and 18 Marlas) and Survey No. 182/1 (2 Marlas) in Mouza Sonamarg, Tehsil Kangan. In the said Suit, it was claimed by the Plaintiffs/ Appellants herein that they are the owners in possession of the aforesaid land having purchased the same by virtue of two sale deeds dated 17th of August, 1981 duly registered by the learned Sub Registrar, Ganderbal. It was alleged that the Defendants 4 and 5/ Respondents 4 and 5 herein, with a view to illegally grab the Suit land from the possession of the Plaintiffs/ Appellants, are trying to cause undue interference with regard to the peaceful possession of the Plaintiffs/ Appellants over the Suit land. On 3rd of August, 2013, the Respondents 4 and 5 filed their Written Statement in opposition to the aforesaid Suit, wherein they strenuously denied the possession of the Plaintiffs/ Appellants over the Suit land. The Respondents 4 and 5 contended that the land in question was purchased by them in the year 1981 by virtue of sale deed and, as such, they are the lawful owners in possession of the same. On 11th of October, 2013, the Suit appears to have been dismissed in default vide Order dated 11th of October, 2013 and, ultimately, on the application of the Plaintiffs/ Appellants, the same was restored vide Order dated 28th of January, 2014. On 11th of October, 2013, the Suit appears to have been dismissed in default vide Order dated 11th of October, 2013 and, ultimately, on the application of the Plaintiffs/ Appellants, the same was restored vide Order dated 28th of January, 2014. Thereafter, the Plaintiffs/ Appellants laid a motion before the learned trial Court stating therein that due to inadvertence the interlocutory application, filed alongside the main Suit seeking injunctive relief to restrain Respondents 4 and 5 from causing any interference in reference to possession and enjoyment of Suit property by the Plaintiffs/ Appellants till final disposal of the Suit, was not taken up for necessary proceedings after restoration of the Suit. Accordingly, the learned trial Court took up the interlocutory application and, after hearing the Counsel for the Plaintiffs/ Appellants as well as the learned Public Prosecutor, in terms of Order dated 15th of July, 2014, while issuing notice to the Respondents 4 and 5, who were set ex-parte at that point of time before the learned trial Court, directed the parties to maintain status quo vis-à-vis the Suit land on spot. Thereafter, the learned trial Court, after finally hearing the learned Counsel for the parties on the interlocutory application filed by the Plaintiffs/ Appellants alongside the main Suit, in terms of Order dated 25th of August, 2014, while holding that the Plaintiffs/ Appellants could not establish existence of a prima facie case in their favour as well as having regard to the fact that the balance of convenience also tilted in favour of the Respondents 4 and 5, rejected the interlocutory application and vacated the earlier Order of status quo passed by it on 15th of July, 2014. It is this Order dated 25th of August, 2014 that has been assailed by the Plaintiffs/ Appellants herein before this Court through the medium of the instant appeal. 3. When this matter was taken up for consideration by this Court on the very motion hearing, i.e., on 13th of November, 2014, the Court, while issuing notice to the other side, directed for maintenance of status quo on spot. 4. Mr. 3. When this matter was taken up for consideration by this Court on the very motion hearing, i.e., on 13th of November, 2014, the Court, while issuing notice to the other side, directed for maintenance of status quo on spot. 4. Mr. Z.A. Qurashi, the learned Senior Counsel, appearing on behalf of the Plaintiffs/ Appellants, submitted that the learned trial Court, while passing the Order impugned, has failed to appreciate the fact that the Plaintiffs/ Appellants herein are the owners in legal as well as physical possession of the land subject matter of the Suit with respect to which sale deeds, duly registered by the competent authority, were placed on record by the Plaintiffs/ Appellants before the learned trial Court. It is contended that the learned Court below also did not take into consideration the fact that on the basis of the aforesaid duly registered sale deeds, mutations in reference to the Suit land were already recorded in favour of the Plaintiffs/ Appellants under Intikal Nos. 343 and 344. The learned Senior Counsel pleaded that once the learned trial Court, after finding prima facie case in favour of the Plaintiffs/ Appellants, passed the Order dated 15th of July, 2014 directing for maintenance of status quo on spot, then it could not have vacated the same on non-existent facts and without appreciating the effect of the same on the Suit property/ lis pending before it. In support of his contentions, Mr. Qurashi has, among others, referred to and relied upon the following case law : i. AIR 1958 SC 79 ; ii. AIR 1962 SC 527 ; iii. SCC 2004 (VIII) 488; iv. SCC 2006 (I) 540; and v. AIR 2008 SC 2033 . 5. The Respondents 1 to 3 are on record to have contended before this Court that since the controversy involved in the appeal is essentially between the Appellants and Respondents 4 and 5, as such, they do not need to take a stand in the matter. 6. Mr R.A. Jan, the learned Senior Counsel, representing the Respondents 4 and 5, submitted that the Order dated 25th of August, 2014 passed by the learned Court below, in view of the conditions imposed therein, has fairly balanced the interests of the parties and, as such, does not require any interference from this Court. 6. Mr R.A. Jan, the learned Senior Counsel, representing the Respondents 4 and 5, submitted that the Order dated 25th of August, 2014 passed by the learned Court below, in view of the conditions imposed therein, has fairly balanced the interests of the parties and, as such, does not require any interference from this Court. It is further submitted that, as per settled legal position, the possession of the Suit property is a sine-qua-non for the very maintainability of the Suit seeking permanent injunction and that having regard to the fact that the possession of the Suit property has always been and continues to be with the Respondents 4 and 5, therefore, the Order impugned does not suffer from any illegality or perversity. It is pleaded that the material referred to and relied upon by the learned Court below fully sustains in law the view of the Court that no prima facie case in favour of the Plaintiffs/ Appellants could be established and that even the balance of convenience tilts in favour of the Respondents 4 and 5. It is averred that the Plaintiffs/ Appellants have no cause of action against the Respondents 4 and 5 who are in physical and actual possession of the Suit land as clearly substantiated by the relevant revenue records. Mr Jan further proceeded to state that the sale deeds relied upon by the Plaintiffs/ Appellants, purported to have been executed by Habib and Gaffar Sons of Shaban Lone, do not relate to the Suit land which is comprised in Khewat No.20 of Revenue Estate Sonamarg and that the suit Land under Khewat No.20 is recorded in favour of Shaban Son of Jamal and Habib Son of Mukhta, whileas, on the other hand, the sale deeds executed in favour of the Respondents 4 and 5 relate to Khewat No.20 in which the Suit land is comprised, thereby conferring the title under law upon the Respondents 4 and 5. To bring home his arguments, the learned Senior Counsel has referred to and relied upon the Judgment of law rendered by the Supreme Court reported as ‘ AIR 2008 SC 2033 ’. 7. Heard learned Counsel for the parties, perused the pleadings on record and considered the matter. I have also gone through the record of the case summoned from the Court below. 8. 7. Heard learned Counsel for the parties, perused the pleadings on record and considered the matter. I have also gone through the record of the case summoned from the Court below. 8. At the outset, what requires to be stated herein this case is that the Order dated 25th of August, 2014 passed by the learned trial Court, as is under challenge herein this appeal, has only disposed of the interlocutory/ interim application, filed by the Plaintiffs/ Appellants alongside the main Suit, seeking a direction in the name of the Respondents 4 and 5 not to cause any interference with their peaceful possession of the Suit property. The learned trial Court, vide the Order impugned, has rejected the aforesaid interlocutory/ interim application of the Plaintiffs/ Appellants by holding that the Plaintiffs/ Appellants could not establish existence of a prima facie case in their favour, besides the balance of convenience, in the attending circumstances, also tilted in favour of the Respondents 4 and 5 and not the Plaintiffs/ Appellants. That being so, at this stage, it would be in the fitness of things for this Court to only evaluate and test the validity of the Order impugned vis-à-vis the rejection of interim relief sought by the Plaintiffs/ Appellants by the learned trial Court as otherwise the same may prejudice the rights and interests of the parties which are pending adjudication in the main Suit. 9. Law on the subject of grant of injunctive/ interim relief is no more res integra. In case titled ‘Zenit Mataplast P. Ltd. v. State of Maharashtra & Ors.’, reported as ‘JT 2009 (12) SC 240’, the Supreme Court, in a landmark Judgment, while strenuously dealing with this issue of grant of interim relief, has, at Paragraphs 23 to 26, observed as under : “23. Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (Vide Anand Prasad Agarwalla v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367 ; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694 ). 24. Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no straitjacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (Vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275 ; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721. 25. Grant of temporary injunction, is governed by three basic principles, i.e., prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114 ; and Anand Prasad Agarwalla (supra). 26. In Colgate Palmolive (India) Ltd. Vs. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114 ; and Anand Prasad Agarwalla (supra). 26. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105 , this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below: (i) Extent of damages being an adequate remedy; (ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor; (iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others; (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible; (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; and (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise." It is, thus settled that for grant of injunctive/ interim relief, the party concerned (seeker) must satisfy the Court with reference to three cardinal principles viz. (i) prima facie case; (ii) balance of convenience; and (iii) irreparable loss. The seeker has to show that he/ she has a prima facie case in his/ her favour which warrants grant of injunction from the Court in order to prevent infringement of his/ her right. At the same time, the seeker must also establish before the Court that the refusal of grant of injunction would subject him/ her to an irreparable loss and that for making such an injunctive direction, the balance of convenience also tilts in his/ her favour. At the same time, the seeker must also establish before the Court that the refusal of grant of injunction would subject him/ her to an irreparable loss and that for making such an injunctive direction, the balance of convenience also tilts in his/ her favour. In the case on hand, the learned trial Court, while dealing with various relevant aspects of the matter qua the aforesaid three cardinal principles of law with respect to grant or otherwise of injunctive/ interim relief in the light of the pleadings on record, came to the prima facie view that the Respondents 4 and 5 are in possession of 03 Kanals and 18 Marlas of the Suit land covered under Survey No.181, Khewat No.20 of Mouza Sonamarg, whereupon they have also carried out certain building activity after seeking proper permission from the competent authority. As regards the remaining portion of the Suit land, i.e., 04 Kanals covered under Survey No.181, Khewat No. 20 of Mouza Sonamarg, the learned trial Court has given liberty to the Plaintiffs/ Appellants to apply for grant of injunctive relief in reference to the said land, subject to determination of impleadment motion filed by the Plaintiffs/ Appellants qua one Nazir Ahmad Wani Son of Haji Mohammad Ahsan Wani Resident of Rajbagh, Srinagar, who is purported to have purchased the said piece of land from Respondents 4 and 5 and, thereafter, alienated the same, vide registered sale deed, in favour of Tariq Ahmad Hafiz Son of Mohammad Maqbool Hafiz Resident of Kangan, Ganderbal. 10. The learned trial Court, after hearing the Counsel for the parties, coupled with an examination of the relevant documentary material on record, has delved upon the issue of grant or otherwise of the injunctive/ interim relief in the manner required as per the aforesaid three cardinal principles of law governing the subject. The prima facie finding that the Respondents 4 and 5 are in possession of the Suit land has substantially weighed before the learned trial Court in rejecting the application of the Plaintiffs/ Appellants seeking grant of injunctive/ interim relief. Besides, the Plaintiffs/ Appellants, either before the learned trial Court or before this Court, have not been able to establish existence of a prima facie case in their favour. That apart, the Plaintiffs/ Appellants have also not substantiated with the support of any documentary evidence that the balance of convenience also tilts in their favour. Besides, the Plaintiffs/ Appellants, either before the learned trial Court or before this Court, have not been able to establish existence of a prima facie case in their favour. That apart, the Plaintiffs/ Appellants have also not substantiated with the support of any documentary evidence that the balance of convenience also tilts in their favour. Given this position, the Order impugned passed by the learned trial Court appears to be a reasoned one. It does not call for any interference. The learned Court below has, after referring to the legal position on the subject of grant of injunctive/ interim relief, given a lucid account of facts in the Order. The Appellants herein have not been in a position to carve out a case for interference in their favour in the appeal. They have neither shown any illegality or perversity committed by the learned trial Court as would compel this Court to set aside the Order of the learned trial Court, nor have they been in a position to disclose the facts/ pleadings on which the injunctive/ interim relief could have been granted in their favour. 11. Looking at the instant case from another perspective, it, needs, must be said here that the learned trial Court, while rejecting the application of the Plaintiffs/ Appellants for grant of injunctive/ interim relief, has well taken care of the rights and interests of both the parties in the impugned Order itself, including the Plaintiffs/ Appellants herein. This is so because the learned trial Court has, in the Order impugned, categorically observed that in order to promote the ends of justice, the Order shall become operational only subject to production of undertaking by the Respondents 4 and 5 to the effect that: (i) any improvement/ building activity over the aforesaid portion of the Suit land shall be made strictly in accordance with law, rules/ regulations holding ground in the concerned field; and (ii) such improvements/ structures raised shall be subject to orders passed by the Court at the conclusion of trial including their removal/ demolition at the risk and cost of Respondents 4 and 5. This observation/ finding of the learned trial Court has not only balanced the rights and interests of the parties while taking a prima facie view on the injunctive/ interim relief application filed by the Plaintiffs/ Appellants, but has also ensured that the lis is fully preserved. This observation/ finding of the learned trial Court has not only balanced the rights and interests of the parties while taking a prima facie view on the injunctive/ interim relief application filed by the Plaintiffs/ Appellants, but has also ensured that the lis is fully preserved. In these circumstances, the thrust of the Plaintiffs/ Appellants, instead of filing this appeal, should have been to ensure completion of the trial of their Suit pending before the learned trial Court at the earliest. 12. Pertinent to mention here that the learned Counsel for the parties strenuously argued their respective cases with the support of relevant law touching the merits of the case, but, as stated hereinabove in this Judgment, since the main Suit is pending trial before the learned trial Court, wherein even the issues have not yet been framed and, therefore, any finding/ observation by this Court with regard to the merits of the case may prejudice the rights and interests of the parties pending adjudication in the Suit. The learned trial Court, on the basis of the pleadings of the parties and evidence led/ or to be led by the parties, has to frame issues and, accordingly, decide the matter in accordance with law. Keeping this in mind, this Court has only confined itself to ascertain the validity of the Order dated 25th of August, 2018, whereby the interim application has been decided by the learned trial Court on the basis of the aforesaid three cardinal principles governing grant of interim relief. The learned trial Court, while appreciating the aforesaid principles in a proper perspective in the light of the facts and circumstances of the case, has come to the conclusion that the Plaintiffs/ Appellants have failed to establish a prima facie case in their favour before the Court and that the balance of convenience also titled in favour of the Respondents 4 and 5. Therefore, the Court is of the considered opinion that the learned trial Court has decided the interlocutory/ interim application after considering all the pros and cons of the case in the given set of facts involved therein. 13. The cumulative effect of all that has been said and done above is that there is no error in the Order impugned passed by the learned trial Court. It is lucid and clear. It does not call for any interference. 13. The cumulative effect of all that has been said and done above is that there is no error in the Order impugned passed by the learned trial Court. It is lucid and clear. It does not call for any interference. The conclusions derived are reasonable, logical and based on the canons of law, as a corollary to which, the instant appeal entails dismissal and is, accordingly, dismissed. Interim direction(s), if any subsisting as on date, shall stand vacated. However, having regard to the fact that the Suit was filed as back as in the year 2013, the learned trial Court is requested to expedite the trial of the Suit in accordance with law and after hearing the parties. It is also made clear here that anything observed in this Judgment hereinabove shall not be construed as an expression of opinion with regard to the merits of the case. 14. Pending application(s), if any, shall stand disposed of. 15. The record of the learned Court below shall be remitted back forthwith along with a copy of this Judgment. CPC No.04/2015: 16. The instant Contempt Petition is filed by the Appellants alleging violation of ad-interim Order dated 13th of November, 2014 passed in MA No.184/2014, in terms whereof status quo on spot was directed to be maintained. 17. In view of the Order passed in the main appeal hereinabove, this Contempt Petition has turned infructuous and is, accordingly, dismissed as such. 18. Copy of this Judgment be placed on each file.