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2024 DIGILAW 46 (JK)

Suresh Kumari Sharma, D/o Late Sh. Kali Dass Sharma v. Nardev Lal, S/o Late. Sant Ram

2024-02-09

JAVED IQBAL WANI

body2024
JUDGMENT : 1. In the instant petition, Supervisory Jurisdiction of this Court enshrined in Article 227 of the Constitution of India is being invoked by the petitioners herein, who claim to have filed a suit in representative capacity for mandatory and permanent prohibitory injunction against the defendants/respondents herein before the Court of Additional Special Mobile Magistrate, R. S. Pura (for short “the Trial Court”) contending therein that a piece of land measuring 10 marlas covered under Khasra No. 188 min belonging to Laxmi Narayan Mandir (for short “the Mandir”) situated at Village Brij Nagar, Panchayat Kharian has been allegedly encroached upon by the defendants/respondents 1 to 4 herein by illegally constructing a gate on the north-east corner of the suit land with the aid and assistance of the defendant 5/respondent 5 herein, who have had been engaged by the management of the Mandir for the construction of a community hall on the suit land. 2. In the application for interim relief filed alongside the said suit before the Trial Court, the Trial Court dispose of the same on 16.06.2023 modifying the initial interim direction dated 07.10.2020, directed the parties to maintain status-quo with respect to the possession of the suit land as it exists at the time of filing of the suit, with a further direction that the suit land shall not be used for parking of any vehicles by the parties or otherwise till the final disposal of the suit. 3. Upon an application filed by the plaintiffs/petitioners herein before the Trial Court for seeking clarification and implementation of order dated 16.06.2023, passed the order on 05.10.2023 (for short “the impugned order”), whereby the Trial Court while interrupting the order of status-quo clarified that the suit land shall remain in the same condition was it was on the day of filing of the suit and nobody shall use the suit land and directed the SHO Police Station, Miran Sahib to implement the initial order dated 16.06.2023, which is further clarified vide order dated 05.10.2023 in letter and spirit. 4. 4. The plaintiffs/petitioners herein have questioned the impugned order dated 05.10.2023 in the instant petition, inter alia, on the grounds that the impugned order is bad both on facts and in law and that the impugned order has altered and modified the basic order dated 16.06.2023, thus, the Trial Court committed an error of jurisdiction and that the Trial Court mis-interpreted the basic order dated 16.06.2023 passing the impugned order in contradiction thereof and that the impugned order is absurd, liable to be quashed. Heard learned counsel for the parties and perused the record. 5. Perusal of the record reveals that the suit filed by the plaintiffs/petitioners herein indisputably has been filed in respect of the land claimed to be belonging the Mandir, which Mandir is not a party/plaintiff in the suit, but the suit though filed in the representative capacity by the plaintiffs/petitioners herein is claimed to be filed as the Management of the said Mandir. 6. Be that as it may, this Court refrains from expressing any opinion in this regard and confine to test the validity or otherwise of the impugned order dated 05.10.2023 under challenge in the instant petition. 7. Law is settled that an interim relief is granted under and in terms of the provisions of Order 39 of the Code of Civil Procedure in the aid of and ancillary to the main relief in a suit available to a party on final determination thereof. It is equally settled law that the power to grant an interim relief in the shape of injunction by a Court in an application for interim relief accompanying the suit is extraordinary in nature and has to be exercised cautiously and an interim relief/injunction, in law, cannot be claimed by a party as a matter of right or course, as the grant of an interim relief/injunction is in the discretion of the Court. 8. 8. Reverting back to the case in hand, it is manifest from the record of the Trial Court that while disposing of the application for interim relief and in regard to the rival claims set up by the parties before it in the suit passed in terms of the order dated 16.06.2023 and while modifying the initial order dated 07.10.2022, indisputably directed the parties to maintain status-quo with respect to the possession of the land in question as existing at the time of filing of the suit and also restraining the parties from using the land in question for parking of the vehicles or otherwise. 9. Perusal of the case set up by the plaintiffs/petitioners herein in the suit reveals that the plaintiffs/petitioners have claimed that the land in question belongs to Laxmi Narayan Mandir and had alleged that the defendants 1 to 4/respondents 1 to 4 herein had constructed a gate on the north-east corner of the suit land in order to grab the land with the aid and assistance of the defendant 5/respondent 5 herein, who had been engaged by the plaintiffs/ petitioners as a contractor for constructing a community hall on the land in question. It had also been averred in the suit by the plaintiffs/ petitioners herein that the defendants 1 to 4/respondents 1 to 4 herein with the aid and assistance of defendant 5/respondent 5 herein are encroaching upon land and that the defendant 5/ respondent 5 herein illegally bifurcated the land by constructing a plinth, providing a part of land to the defendants 1 to 4/respondents 1 to 4 herein illegally and that the cause of action to file the suit accrued to them when defendant 5/respondent 5 herein in connivance with the defendants 1 to 4/respondents 1 to 4 herein started raising construction by bifurcating the suit land by laying plinth over the same. 10. Further perusal of the record reveals that the defendants/respondents herein in response to the suit by way of written statement filed thereto have stated that the property in question is the property possessed by the Laxmi Narayan Mandir, yet denied that the possession and affairs of the Mandir are being looked after by the plaintiffs/petitioners herein. 10. Further perusal of the record reveals that the defendants/respondents herein in response to the suit by way of written statement filed thereto have stated that the property in question is the property possessed by the Laxmi Narayan Mandir, yet denied that the possession and affairs of the Mandir are being looked after by the plaintiffs/petitioners herein. It has further been stated in the written statement by the defendants/respondents herein that on the north-east side of the Mandir they have a pathway on the land in question and have installed a gate constructed by them way back 25 years having been even endorsed by the BDO Miran Sahib in a report submitted to the Sub Divisional Magistrate, R. S. Pura dated 13.10.2020 in this regard. It has been further stated in the written statement that the plaintiffs/petitioners herein before institution of the suit had also filed a petition before the Custodian Evacuee Property, Jammu with respect to the same suit land alleging therein that the suit land is an evacuee property and, as such, the Custodian Evacuee Property, Jammu had the power to try the matter pertaining to the suit land as also the construction raised thereon. It has been further stated in the written statement by the defendants/respondents herein that in fact the plaintiffs/petitioners herein by filing the suit intended to block the pathway being used by the defendants/respondents herein for the last more than 25 years in the name of the Mandir in order to harass the defendants/respondents herein. It has been further reiterated in the written statement by the defendants/respondents herein that the suit land is custodian property as had been admitted by the plaintiffs/ petitioners herein themselves in the petition filed before the Custodian Evacuee Property, Jammu. 11. It has been further reiterated in the written statement by the defendants/respondents herein that the suit land is custodian property as had been admitted by the plaintiffs/ petitioners herein themselves in the petition filed before the Custodian Evacuee Property, Jammu. 11. Perusal of the order dated 16.06.2023 tends to show that the Trial Court have had been alive to the rival claims of the parties lodged in their respective pleadings and thus, while passing the said order directed the parties to maintain status-quo on spot with respect to the possession over the suit land as it existed on the date of filing of the suit, further restraining the parties not to use the suit land for parking of any vehicle thus, striking a delicate balance between the competing rights and interests of the parties projected in their respective pleadings and seemingly being conscious of the legal position that the grant of injunction is equitable in nature aimed at to project the lis till the rival claims of the parties are adjudicated upon. 12. Perusal of the impugned order would further reveal that the plaintiffs/petitioners herein, in the application seeking clarification of the order dated 16.06.2023 have had pleaded that since the Trial Court had held the plaintiffs/petitioners herein in possession of the suit land, as such, though had recorded a finding thereof yet the defendants/respondents herein in complete defiance of the order dated 16.06.2023 have been causing illegal interference in the said peaceful possession of the plaintiffs/petitioners herein over the suit land continuously disturbing the same and that on account of the breach of the said order, the plaintiffs/petitioners herein approached the SHO Police Station, Miran Sahib for its enforcement and implementation, however, the concerned SHO mis-interpreted the order and on the contrary denied possession of the plaintiffs’/petitioners’ suit land by stopping them from making the best use of the suit land. 13. 13. Perusal of the impugned order dated 05.10.2023 passed by the Trial Court, manifestly demonstrate that the Court below has taken into account the facts obtaining in the matter, the respective pleadings of the parties and consequently qualified the purport and spirit of the order dated 16.06.2023 that the suit land shall remain in the same condition as it was on the date of filing of the suit and no one shall use the land in question, reiterating the intention to have the subject matter of the suit maintained in status-quo as it existed on the date of filing of the suit and also not to be used the land for parking any vehicles by the parties, thus clearly forbidding the usage of the land in question. 14. As has been observed in the preceding paras and risking repetition, it is reiterated that the primary object of granting interim relief is the preservation of the subject matter of the lis, which is in dispute between the parties till the rights and conflicting claims of the parties are settled requiring a Court to evolve a workable formula to the extent called for by the demands of the situation, keeping in mind the pros and cons of the matter by striking a delicate balance between the conflicting claims and interests. 15. The contention of the petitioners that the Trial Court while clarifying the order dated 16.06.2023 in terms of the impugned order dated 05.10.2023 committed an illegality, self contradictions, inasmuch as overstepped its jurisdiction, is grossly misconceived, considering the aforesaid facts and circumstances as also the principles of law supra, as such, the Trial Court cannot be said to have faulted in the matter while passing the impugned order which is questioned herein by invoking Supervisory Jurisdiction enshrined in Article 227 of the Constitution of India, which otherwise having regard to the law laid down by the Apex Court in case titled as “Radhey Shyam and anr. Vs. Chhabi Nath and ors, reported in 2015 (5) SCC 423 is not available to the petitioners. 16. Viewed thus, for the aforesaid reasons, this Court is not inclined to exercise Supervisory Jurisdiction, as such, petition is dismissed. 17. Vs. Chhabi Nath and ors, reported in 2015 (5) SCC 423 is not available to the petitioners. 16. Viewed thus, for the aforesaid reasons, this Court is not inclined to exercise Supervisory Jurisdiction, as such, petition is dismissed. 17. It is made clear that any observation made hereinabove shall not be construed to be an expression of any opinion qua the merits of the case pending before the Trial Court and observations, if any, made herein shall be deemed to have been made for the purposes of the disposal of the instant petition alone.