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2022 DIGILAW 136 (JK)

Mohd. Ali v. Sanjay Kumar

2022-03-30

JAVED IQBAL WANI

body2022
JUDGEMENT/ORDER : 1. Supervisory jurisdiction under Article 227 of the Constitution of India is being invoked by the petitioner herein for setting aside order dated 27.11.2020 (for short, “impugned order”) passed by the Court of Additional District Judge Udhampur (Appellate Court) in Miscellaneous appeal titled as, “Sanjay Kumar & Anr. Vs. Liyaqat Ali & Ors.”. 2. Facts emerging from the petition would reveal that the father of the petitioners herein namely Anayatullah came into possession of land measuring 9 ½ Marlas under Khasra No. 761 min situated at village Omara, Udhampur pursuant to agreement to sell dated 13.05.1995, allegedly executed between father of the petitioners and father of the respondents 1 and 2 and his real brother, namely, Dhani Ram, followed by agreement to sell dated 29.09.2007 executed between father of the petitioners and father of the respondents 1 and 2 and followed by another agreement to sell dated 07.01.2010 executed between the father of the petitioners and father of respondents 1 and 2. 3. A suit for declaration an injunction had been filed by one Charn Dass challenging the agreement to sell dated 07.01.2010 supra besides seeking an injunction against the father of the petitioners and father of the respondents herein. The said suit is dismissed on 16.11.2013. 4. Another suit is filed in the year 2015 by the father of the respondents herein against the father of the petitioners, challenging all the above agreements to sell while seeking a decree for permanent prohibitory injunction in respect of land measuring 7 Kanals 5 Marlas under Survey No. 761 (supra). 5. The said suit is contested by the father of the petitioners by filing written statement to the said suit whereupon the Trial court (Additional Special Mobile Magistrate, Udhampur) dismissed the application for interim relief accompanying the said suit on 16.07.2020. 6. During the pendency of the suit (supra) filed before Additional Special Mobile Magistrate, Udhampur, father of the petitioner and father of the respondents died. 7. A suit for possession is filed on 20.08.2020 by the respondent Nos. 1 and 2 herein against the petitioners herein before Assistant Commissioner Revenue, Udhampur for possession of the land measuring 6 Kanals 15 Marlas covered under Survey No. 761 including 9 ½ marlas, concealing the fact of the pendency of the suit (supra) filed by their father before the Court of Additional Special Mobile Magistrate, Udhampur. 8. 1 and 2 herein against the petitioners herein before Assistant Commissioner Revenue, Udhampur for possession of the land measuring 6 Kanals 15 Marlas covered under Survey No. 761 including 9 ½ marlas, concealing the fact of the pendency of the suit (supra) filed by their father before the Court of Additional Special Mobile Magistrate, Udhampur. 8. Another suit is filed on 21.08.2020 by the sons of respondent 1 herein before Munsiff Udhampur seeking a decree for permanent prohibitory injunction against the petitioners herein in respect of land measuring 9 Marlas covered under Survey No. 761. 9. Written statement is filed to the said suit by the petitioners herein on 01.09.2020 whereafter, order of status qua granted by the said Court in the application for interim relief on 21.08.2020 is vacated on 11.09.2020. The said suit is subsequently withdrawn by the sons of respondent No.1 herein on 24.09.2020. 10. The respondents herein filed a Miscellaneous appeal (supra) before the Appellate Court against order dated 16.07.2020 passed by the Trial Court in the suit initially filed by the father of the respondents herein against the father of the petitioners before the Court of Additional Special Mobile Magistrate, Udhampur, whereunder the interim application accompanying the said suit had been dismissed by the said Trial Court. 11. The Appellate Court passed the impugned order dated 27.11.2020 while setting aside the order of the Trial Court dated 16.07.2020 directing maintenance of status qua with respect to the possession and nature of the said land. 12. The impugned order is assailed, inter-alia, on the grounds that the Appellate Court passed the same without appreciating the material fact on record and that the factual finding recorded by the Appellate Court about the title of the land in question is contrary to the record and, thus, untenable and that the Appellate Court did not appreciate the facts and circumstances of the case particularly the act and conduct of the respondents herein while filing cases after cases in order to forcibly dispossess the petitioners from land measuring 9 ½ Marlas and that the Appellate Court passed the impugned order while losing the sight of the material on record. 13. Respondents in response to notice have appeared through their counsel Mr. Sudesh Sharma on 3.03.2021, however, the respondents have chosen not to file any response to the petition. Heard learned counsel for the petitioners and perused the record. 14. 13. Respondents in response to notice have appeared through their counsel Mr. Sudesh Sharma on 3.03.2021, however, the respondents have chosen not to file any response to the petition. Heard learned counsel for the petitioners and perused the record. 14. The moot issue involved in the instant petition would be as to whether the Appellate Court having regard to the facts and circumstances of the case was right in allowing the appeal filed by the respondents herein against the order of the Trial Court dated 16.7.2020 and grant interim relief to the respondents herein in the application for interim relief accompanying to the suit. 15. Before adverting to the aforesaid issue, it would be desirable and appropriate to refer to the ambit and scope of order 39 of Code of Civil Procedure which provided for temporary injunctions and interlocutory orders. 16. According to the dictionary meaning, injunction is a judicial process or an order requiring a person or persons to whom it is directed to do or refrain from doing a particular act. Rule 1 of Order 39 CPC enables the Court to grant temporary injunctions and consist of two stages:- (i) Ad-interim injunction which is granted without finally deciding or disposing of an application for injunction and operates immediately till the disposal of the application or till some order is passed; and (ii) Interim injunction, which is normally granted while deciding and disposing of the main application to ensure generally till the disposal of the suit. An interim relief can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his rights in a suit. 17. It is settled position of law that the power to grant injunction is extraordinary in nature it has to be exercised cautiously and with circumspection and that a party is not entitled to an injunction/interim relief as a matter of right or course. Grant of injunction/interim relief is in the discretion of the Court. 18. 17. It is settled position of law that the power to grant injunction is extraordinary in nature it has to be exercised cautiously and with circumspection and that a party is not entitled to an injunction/interim relief as a matter of right or course. Grant of injunction/interim relief is in the discretion of the Court. 18. Keeping in mind the aforesaid legal position and turning back to the facts of the case, admittedly, perusal of the record of the Appellate Court summoned during the course of proceedings by this Court reveals that the respondents herein did not refer in the memo of appeal to the suit filed by them before Assistant Commissioner Revenue, Udhampur for possession of land measuring 6 Kanals 15 Marlas covered under Survey No. 761 wherein the petitioners herein had been impleaded as party defendants 1 to 3. In presence of the suit filed by the respondents herein before Assistant Commissioner Revenue for complete possession of land measuring 6 Kanals 15 Marlas covered under Survey No. 761 including the 9 Marlas alleged to have been under the possession of the petitioners herein as dishonest tenants would also not have entitled the respondents herein to any relief by the Appellate Court much less one granted in terms of the impugned order fundamentally and primarily in view of the plea urged in the said suit filed by the respondents herein about the nature of the land. 19. Perusal of the said suit would tend to show that the respondents herein being plaintiffs therein the said suit had pleaded that their father had engaged the defendants/petitioners herein to look after his property, comprising of land measuring 6 Kanals 15 Marlas covered under Survey No. 761 and had given an accommodation to the petitioners herein as well and that the defendants/petitioners herein proved to be bad tenants and upon demand by their father to return the land in question instead retained 9 Marlas of land being part of Khasra No. 761. The respondents have deliberately and intentionally chosen not to refer to the institution of the said suit and its pendency in the memo of appeal which suit had been filed by the respondents herein on 20.08.2022, so much so, the respondents herein have also withheld information about the filing of the suit by sons of respondent No. 1 herein before the Court of Munsiff Udhampur on 21.08.2020 against the petitioners herein seeking a decree of permanent prohibitory injunction for restraining the defendants/petitioners herein from raising construction or grabbing the land measuring 9 Marlas covered under Khasra No. 761 while claiming the said land to be belonging to their grandfather Isher Dass. The respondents have even failed to mention in the memo of appeal before the Appellate Court about the passing of the order of status qua therein the said suit by the Court of Munsiff Udhampur dated 21.08.2020 as well as vacation of the said interim order on 11.09.2020 upon filing of response by the petitioners herein by the said Court as well as the withdrawal of the said suit on 24.09.2020. The said facts indisputably being material one have been concealed and suppressed by the respondents herein before the Appellate Court and concealment of such material facts admittedly in law would not have entitled the respondents herein to any relief much less one granted by the Appellate Court in terms of the impugned order on the settled principle of law that “he who seeks equity must do equity.” 20. As has been noticed in the preceding paras and at the cost of risking repetition law is no more resintegra that power to grant injunction is extraordinary in nature and the same has to be exercised cautiously and with the circumspection and that a party is not entitled to an injunction/interim relief as a matter of right. 21. The respondents herein admittedly have deliberately and intentionally concealed and suppressed aforesaid material facts before the Appellate Court while filing appeal against the order of the trial Court dated 16.07.2020. The respondents, therefore, cannot by any sense of imagination be said to entitle to an equitable relief of injunction owing to their aforesaid faulty conduct. A reference here to the judgment of the Apex Court titled as Gujarat Bottling Co. Ltd. & Ors. Vs. The respondents, therefore, cannot by any sense of imagination be said to entitle to an equitable relief of injunction owing to their aforesaid faulty conduct. A reference here to the judgment of the Apex Court titled as Gujarat Bottling Co. Ltd. & Ors. Vs. Coco Cola & Ors., reported in 1995 (5) SCC 545 would be relevant and appropriate herein, wherein it has been held that besides the cardinal principles governing and regulating grant or refusal of an injunction, the conduct of a party has to be kept in view. If the conduct of the party claiming an injunction is blame worthy for having approached the Court for seeking an injunction with unclean hands or having suppressed material for relevant facts, the party would not be entitled to an injunction. This is based on the principle that a Court is supposed to know the law, but it knows nothing about the facts, as such, it is incumbent upon the party to state the facts fully and fairly, and if the party suppresses the material facts or is not candid in stating the facts, the Court in its own protection can refuse the injunction, so that there is no abuse of process of Court by an unscrupulous litigant. 22. Having regard to the aforesaid legal position and the facts and circumstances of the case, the instant petition can safely set to be a fit case for exercise of supervisory jurisdiction in the light of the law laid down by the Apex Court in “Shalini Shyam Shetty & Anr. Vs Rajindra Shankar Patil”, reported in 2010 (8) SCC 329 ” and “Radhey Shyam & Anr. Vs Chhabi Nath & Ors. reported in 2015 (5) SCC 423 .” 23. For what has been observed, considered and analyzed hereinabove, the instant petition deserves to be allowed. Accordingly, the impugned order dated 27.11.2020 passed by the Appellate Court shall stand set aside and appeal filed by the respondents 1 & 2 before the Appellate Court shall stand dismissed while restoring the order of the Trial Court dated 16.07.2020. 24. It is made clear that nothing hereinabove shall be construed to be expression of any opinion about the merits of the case. 25. Disposed of along with connected CM(s) in the aforesaid terms.