Commissioner State Taxes & Anr vs Zaffar Abass Din
2021 Latest Caselaw 456 j&K/2

                 HIGH COURT OF JAMMU AND KASHMIR
                           AT SRINAGAR
                                 ...

                               CM(M) No. 44/2020
                               CM No. 2075/2020
                               CM No. 2076/2020
                                            Reserved on : 09.04.2021
                                          Pronounced on: 20.04.2021

Commissioner State Taxes & Anr.                                    .... Petitioners(s)

                          Through: Mr. Sajad Ashraf, GA.


                                       Versus
Zaffar Abass Din                                                   ...Respondent(s)

                           Through: Mr. Fayaz Ahmad Sodagar, Advocate.

CORAM:
             HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                      ORDER

1. Petitioners herein have filed instant petition under Article 227 of the

Constitution of India while seeking setting aside of orders dated 18.02.2020

and 12.03.2020 (for short impugned orders) passed by Principal District

Judge, Anantnag (for short trial court).

2. Facts those emerge from perusal of the petition reveals that the petitioners

herein on account of floods of 2014 shifted from the Office Complex of

Deputy Commissioner, Anantnag, to a private building of the respondent

herein upon being taken on rent.

3. It is being stated that during the pendency of the case of the building of

respondent herein taken on rent by the petitioners, before the Rent

Assessment Committee, Anantnag, a civil suit came to be filed by the

respondent herein for recovery of arrears of rent amounting to Rs.

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1,00,97,767,50/- along with the interest @ 16% on the ground rent due from

01.11.2014 till February 2020 as also future rent.

4. It is being stated that in the application for interim relief accompanied with

the said suit, trial court passed impugned order dated 18.02.2020 directing

the parties to maintain status quo on spot with respect to the suit property.

5. It is being stated that during the pendency of the suit and application for

interim relief, respondent herein filed an application on 12.03.2020 before

the trial court seeking a direction that the defendant-petitioners herein be

directed to pay the balance amount of arrears of rent upto February 2020.

The trial court is stated to have endorsed on the said application an order on

12.03.2020 as under:-

"Copy of application forwarded to non-applicant no. 2 for

compliance by or before 23.03.2020".

6. The above orders dated 18.02.2020 and 12.03.2020 impugned in the instant

petition are being challenged inter alia amongst others on the grounds that

the same have been passed against law and facts inasmuch as are contrary to

the provisions of law and that the reliefs granted in terms of impugned order

could not have been granted in favour of the respondent and that the

impugned orders have caused grave and serious prejudice, loss and injury to

the petitioners and that impugned orders have been passed while adopting an

alien procedure and that the impugned orders have been passed in the

application for interim relief accompanying the suit being not maintainable

owing to non-issuance of notice under section 80 CPC and that impugned

orders as well as the proceedings conducted by the trial court are contrary to

the provisions of law so on and so forth.

7. Heard learned counsel for the parties and perused the record.

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8. Perusal of the record reveals that the respondent herein has filed a suit for

recovery of arrears of rent seeking following reliefs:

1. A decree for Rs. 10097767/- with interest @ 16% as rent dues from

01.11.2014 till February 2020 and future rent in favour of plaintiff.

2. A decree/order for payment of future rent dues be also passed against the

defendants in favour of plaintiff.

3. Costs of the suit be awarded against defendants and, in favour of plaintiff.

4. Any other and further relief as this Hon'ble Court may deem fit and proper

in the circumstances of the case be also issued in favour of plaintiff, against

defendants.

9. Perusal of the application for interim relief accompanying the suit would

reveal that the plaintiff-respondent herein prayed that till final disposal of the

main suit the moveable property in the office of defendant no.2 (in the

demised premises) in the shape of office files, documents, furniture etc be

attached and also the defendants/non-applicants be directed not to shift their

office to some other areas from the demised premises at Khanabal belonging

to applicant/plaintiff till final disposal of the main suit.

10.The moot point that emerges for consideration of this Court would be as to

whether in the facts and circumstances of the case, the trial court could have

passed the impugned orders in a suit seeking recovery of arrears of rent.

11.Law is settled that power to grant injunction is extra ordinary in nature and

it can be exercised cautiously and with circumspection. A party is not

entitled to an interim relief as a matter of right. Grant of injunction is

discretion of the court and such discretion has to be exercised in favour of

the plaintiff only if the court is satisfied that unless the defendant is

restrained by an order of injunction, irreparable loss or damage will be

caused to the plaintiff.

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12. The court grants injunction to meet the ends of justice. Power to grant

injunction is equitable. Being an equitable relief, before deciding an

application for interim relief, a court of equity would exercise discretionary

power in granting temporary injunction normally applying three golden

principles viz:-

i. Whether plaintiff-respondent herein has a prima facie case;

ii. Whether the balance of convenience is in his favour; &

iii. Whether he would suffer the irreparable injury if his prayer for

injunction is disallowed.

13. The aforesaid three principles described as three pillars on which foundation

of every order of injunction rests are of extreme importance.

14. Law is also settled that all the three aforesaid principles must co-exist i.e all

of them must be present. If one or more are not there, no interim injunction

can be granted. All the three principles in law are required to be examined

independently and not interdependently.

15. A reference in regard to above to the judgment of Apex court passed as Best

Seller Retail (India) Pvt. Ltd. V.s Aditya Birla Nuvo Ltd. & Ors., reported

in AIR 2012 SC 2448, would be advantageous and appropriate herein

wherein at para 14 following has been noticed and observed.

Yet, the settled principle of law is that even where prima

facie case is in favour of the plaintiff, the Court will

refuse temporary injunction if the injury suffered by the

plaintiff on account of refusal of temporary injunction

was not irreparable. In Dalpat Kumar & Anr. V. Prahlad

Singh & ors. {MANU/SC/0715/1991: (1992) 1 SCC 719}

this Court held:

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Satisfaction that there is a prima facie case by itself is

not sufficient to grant injunction. The Court further has

to satisfy that non-interference by the Court would result

in "irreparable injury" to the party seeking relief and

that there is no other remedy available to the party

except one to grant injunction and he needs protection

from the consequences of apprehended injury or

dispossession. Irreparable injury, however, does not

mean that there must be no physical possibility of

repairing the injury, but means only that the injury must

be a material one, namely, one that cannot be adequately

compensated by way of damages.

16. The perusal of the instant case manifestly demonstrates that the plaintiff-

respondent herein is seeking recovery of rent qua the demise premises stated

to be under the occupation of the petitioners. The rent so claimed is

quantified and measured.

17. The amount of money claimed by way of rent by the plaintiff-respondent

herein is ascertainable and in the event the plaintiff succeeds in the suit, he

can be compensated appropriately thereof for the use and occupation of the

premises by the defendant-petitioners herein.

18. In this view of the matter it can safely be said that the plaintiff-respondent

herein could not suffer an irreparable loss and injury in the event the

injunction/ interim relief as prayed is not granted.

19. The trail court while passing impugned orders has grossly erred and

observed the aforesaid golden principles and the law laid down by the apex

court in breach while granting injunction.

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20. Although the impugned orders are appealable yet going by the principles

and proposition laid down by the Apex court qua exercise of supervisory

jurisdiction under Article 227 of the Constitution of India in the case titled as

Shalini Shayam Shetty & Anr Vs. Rajendra Shankar Pati, reported in

2010 (8) SCC 3291, & Radhey Shyam and Anr. V.s. ChhabiNath & Ors,

reported in 2015 (5) SCC 423, it is manifest that the trial court has failed to

be within the bounds of its authority warranting exercise of supervisory

jurisdiction.

21. Viewed thus what has been observed, considered and analyzed hereinabove

the petition is allowed and impugned orders are set aside. The trial court,

however, is free to reconsider and revisit the application for interim relief

afresh after affording an opportunity of hearing to the defendant-petitioners

herein.

22. It is however made clear that nothing hereinabove shall be construed to be

expression of any opinion about the merits of the case.

(Javed Iqbal Wani) Judge Srinagar 20.04.2021 "Nuzhat Shafi"

                                    Whether the order is speaking:        Yes/No

                                    Whether the order is reportable:      Yes/No




NUZHAT SHAFI
2021.04.20 15:19

_____________________________________________________________________________________ I attest to the accuracy and integrity of this document