Jammu & Kashmir High Court - Srinagar Bench
Mehraj-Ud-Din vs Pran Nath Razdan And Anr on 5 April, 2021
S. No. 504
Regular Cause List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
MA No. 157/2013
IA No. 1/2013 [418/2013]
Mehraj-ud-Din .....Appellant(s)
Through: Mr. N. H. Khuroo, Advocate
V/s
Pran Nath Razdan and Anr. ..... Respondent(s)
Through: Mr. Q. R. Shamus, Advocate
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
05.04.2021
1. This appeal is filed against the order dated 19.12.2012, passed by the
learned Additional District Judge, Srinagar, (for short "Trial Court") in a
case titled Mehraj-ud-din v. Pran Nath Razdan and Anr., dismissing the
appellant's application filed under Order VIII Rule 1, 10 CPC and also
application under XXXIX Rule 1 & 2, seeking temporary injunction.
2. The order impugned has been, inter alia, challenged on the ground that
the Trial Court has passed the order in a mechanical manner and without
applying judicial mind. Despite the fact that appellant has a prima facie
case, would suffer irreparable loss and injury, and balance of convenience
being in his favour, the Trial Court has refused to grant interim injunction
in his favour.
3. The case of appellant before the Trial Court was that the defendants
agreed to execute a sale deed in respect of land measuring 1 kanal,
comprising khasra no.2002/1478 situated at Mozah Guptganga, Srinagar,
MA No. 157/2013
against sale consideration of Rs. 3.05 lacs and agreement to sell was also
executed. Further case of appellant/plaintiff was that he had paid
Rs.50,000/- as earnest money and paid Rs.2.00 lacs on 12.01.1998 and
Rs.1.00 lac on 26.06.1999 through two demand drafts. It is stated by him
that the defendants turned dishonest and they did not pursue the
application for permission before the competent authority under Jammu
and Kashmir Migrant Immoveable Property (Preservation, Protection and
Restraint on Distress Sales) Act, 1997, (hereinafter referred to as "Act of
1997") for sale of the said property. It is stated by him that defendants
had, despite being asked, failed to execute the sale deed or to obtain
permission for the same. On the said grounds, he sought a decree for
specific performance of contract against the defendants. During the
pendency of the suit, the appellant has made an application for passing a
decree on the ground that the defendants had failed to file a written
statement within the stipulated time period.
4. It appears that the Trial Court, at the time of filing of the suit, directed the
parties to maintain status quo.
5. Perusal of impugned order reveals that written statement had been filed
by defendants/respondents, resisting the suit of plaintiff/appellant. It also
comes to fore from impugned order that there was no permission granted
by competent authority under the Act of 1997, for alienation, and the sale
was construed as distress sale. Appellant appears to have approached this
Court with a writ petition, which, however, was dismissed with the liberty
to appellant to avail appropriate remedy of appeal as provided under the
Act of 1997. Thereagainst, an Appeal was preferred, which was
dismissed. Appellant preferred a writ petition before this Court, which
MA No. 157/2013
was dismissed on 17.3.2020. Thereafter, Letters Patent Appeal was filed,
which met with same fate.
6. There is no dispute to the fact that defendants are migrants and the suit
property is a migrant property, to which provisions of the Act of 1997,
apply and, therefore, the suit is barred under Section 8 of the Act.
7. The Trial Court, while passing the order and refusing to allow the prayer
of the plaintiff, has taken into consideration all facts of the case, the law
applicable, orders passed by the authority under the Act, judgments
passed in writ petition as well as LPA. The Trial Court found that the
plaintiff has failed to show a prima facie case; failed to show that he would
suffer irreparable loss and injury in case injunction sought was not granted
and balance of convenience was not in his favour. The Trial Court as is
evident from the record and reasoning given in the order impugned has
passed the order refusing to grant injunction and the reasoning and finding
returned by the Trial Court are based upon objective consideration of the
material placed before it and the order is supported by cogent reasons.
8. Once the Court of first instance exercises its discretion to grant or refuse
to grant relief of temporary injunction and the said exercise of discretion
is based upon objective consideration of the material placed before the
court and is supported by cogent reasons, the appellate court will be loath
to interfere simply because on a denovo consideration of the matter it is
possible for the appellate court to form a different opinion on the issues
of prima facie case, balance of convenience, irreparable injury and equity
[ vide Skyline Education Institute (India) (P) Ltd. v. S. L. Vaswani, (2010)
2 SCC 142]
MA No. 157/2013
9. The Supreme Court in Wander Ltd. v. Antox India (P) Ltd., reported in
1990 Supp SCC 727, was called upon to determine the scope of appellate
courts power to interfere with the discretion exercised by court of first
instance in granting or refusing the prayer for temporary injunction. It was
observed that
"The appellate court will not interfere with the exercise of discretion
of the Court of first instance and substitute its own discretion except
where the discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely or where the court had
ignored the settled principles of law regulating grant or refusal of
interlocutory injunctions. An appeal against exercise of discretion is
said to be an appeal on principle. Appellate court will not reassess
the material and seek to reach a conclusion different from the one
reached by the court below if the one reached by that court was
reasonably possible on the material. The appellate court would
normally not be justified in interfering with the exercise of discretion
under appeal solely on the ground that if it had considered the matter
at the trial stage it would have come to a contrary conclusion. If the
discretion has been exercised by the trial Court reasonably and in a
judicial manner the fact that the appellate court would have taken a
different view may not justify interfere with the trial court's exercise
of discretion."
10. In the backdrop of above well settled legal position, this Court will not
reassess the material and seek to reach a conclusion different from the one
reached by the Trial Court. Having said that, there is no merit in the appeal
and the order impugned does not call for any interference as the same has
been passed after taking into consideration all facts and circumstances of
the case. The Trial Court has rightly exercised its jurisdiction.
11. In view of the preceding analysis, the appeal is dismissed and as a
corollary thereof, the order of the learned Additional District Judge,
Srinagar is upheld.
(VINOD CHATTERJI KOUL)
JUDGE
SRINAGAR
05.04.2021
"Manzoor"
MANZOOR UL HASSAN
DAR MA No. 157/2013
2021.04.23 12:28
