Samitra Devi vs Shree Kumar Kotwal And Others
2021 Latest Caselaw 1402 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                                Reserved on: 28.10.2021
                                                Pronounced on: 03.11.2021

                                                     MA No. 17/2021
                                                     CM No. 8002/2021

Samitra Devi                                               .......Appellant(s)

                                Through: Mr. G.S. Thakur, Advocate

                                   Versus

Shree Kumar Kotwal and others                              ......Respondent(s)

                                Through: Mr. R.D. Singh Bandral, Advocate
                                         Mr. Vikram Rathore, Advocate

CORAM: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE

                               JUDGMENT

1. Through the medium of this appeal, the appellant seeks setting aside

of the order dated 17.09.2021 passed by the court of learned Principal

District Judge, Bhaderwah (for short the "Trial court") in a civil suit

titled "Samitra Devi vs Shree Kumar Kotwal and others", whereby

dismissed the application for grant of stay, on the grounds tailored

therein.

2. It is contended in the appeal that the appellant filed a civil original suit

for declaration with permanent prohibitory injunction to the effect that

the appellant by virtue of document executed by her husband late

Krishan Lal and his brothers namely Shree Kumar Kotwal and Om

Kumar Kotwal way back in the year 1967 in favour of the appellant, is

the absolute owner in continuous peaceful possession and occupation

of land bearing Khasra No. 1456 measuring 1 kanal 14 marlas situated

at revenue village Udrana, Tehsil Bhaderwah. It is averred that since

the appellant who is in cultivating possession of the suit land, the

respondent No. 1 filed a petition for partition before the Tehsildar,

Bhaderwah seeking the relief of partition of the land in different

khasra numbers, as such the respondents have no right to maintain

their claim over the suit land. It is further submitted that the

respondent No. 1, husband of the appellant, respondent No. 2,

husband of respondent No. 3 and father of respondent Nos. 4 to 6 have

jointly sold the land falling under Khasra Nos. 351, 355, 358, 362, 363

and 367 measuring 37 kanals, besides this the respondent No. 1 has

also forged the record of joint property falling under Khasra No. 1543

measuring 19 marlas by recording his name in the revenue record and

sold land measuring 2 kanals 11 marlas falling under Khasra No. 3229

min without the consent and knowledge of other co-sharers. Thus the

parties are managing the affairs of their respective shares, as such

respondent No. 1 has no claim over the suit property.

3. It is contended that along with the main suit the appellant has also

filed an application in terms of order 39 Rule 1 & 2 CPC which has

been rejected by the Trial court after considering the written statement

filed by defendant/respondent on the ground that the same is devoid of

merit.

4. It is contended that the case set up by the appellant before the Trial

court is that the land is under the cultivating possession of the

appellant since 1967 on the basis of the alleged document which is 50

years old and as per section 91 of the Evidence Act the document

which is 30 years old need not to be proved and the presumption can

be drawn in favour of the genuineness of the document.

5. Learned counsel for the respondent has resisted the appeal and urged

for its dismissal.

6. Heard the learned counsel for the parties and considered the matter.

7. In the above contextual discourse, whereby this Court, while deciding

the case in hand qua grant or refusal of temporary injunction, should

delve deeper into the facts and circumstances of the case or not.

Answer thereto is in negative. The reason being, if this Court

discusses the factum of the suit property, it would tantamount to

deciding the whole case and giving a particular opinion on the subject

matter of the case. So better it would be to confine the present

discussion to the impugned as appellant is only aggrieved thereof and

seek setting-aside thereof.

8. The Trial court has, after making a discussion of the facts of the case,

taken into account the requirements and ingredients for grant or

refusal of the temporary injunction. The Trial court has rightly

discussed the provisions of Order XXXIX Rule 1 of the Code of Civil

Procedure as also the three cardinal principles for grant of the

temporary injunction, viz. prima facie case; balance of convenience;

and irreparable loss.

9. The Supreme Court in case of Skyline Education Institute (Pvt.) Ltd

vs. S.L. Vaswani, AIR 2010 SC 3221 has said that once the court of

first instance exercises its discretion to grant or refuse the relief of

temporary injunction, the appellate court should be loath to make any

interference. However, the Supreme Court, while saying so, has made

it clear that if the appellate court comes to the conclusion that the

discretion exercised by the trial court in refusing to entertain the

prayer for temporary injunction is vitiated by an error apparent or

perversity and manifest injustice has been done, then interference in

such circumstances would warrant.

10. Order XXXIX of the Code of Civil Procedure envisions as to

temporary injunctions and interlocutory orders. Rule 1 thereof

provides:

"1. Cases in which temporary injunction may be granted. --Where in any suit it is proved by affidavit or otherwise--

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders."

11. Rule 1 of Order XXXIX, thus, says and envisages that in the event in

a suit it is by affidavit or otherwise proved that any property, which is

in dispute in a suit, is in danger of being wasted, damaged or alienated

by any party to the suit or wrongfully sold in an execution of a decree

or that the defendant threatens or intends to remove or dispose-off his

property with a view to defrauding his creditors or that the defendant

threatens to dispossess the plaintiff or otherwise cause injury to the

plaintiff in relation to any property, which is in dispute in the suit, the

Court may by order grant a temporary injunction to restrain such act

or make such other order for the purpose of staying and preventing the

wasting, damaging, alienation, sale, removal or disposition of the

property or dispossession of the plaintiff or otherwise causing injury

until the disposal of the suit or until further orders. It is necessary to

be seen that if the property in dispute is tried to be wasted, damaged,

alienated, sold, disposed-off or there are chances of dispossessing the

plaintiff from any property, which is in dispute in the suit and/or

which may cause injury to the plaintiff concerning any property,

which is in dispute in the suit, the Court may grant the temporary

injunction. So, grant of temporary injunction is not to put an end to the

litigation, but it is a beginning of the litigation and grant of the

temporary injunction is aiming at preserving the property, which is in

dispute in the suit because if the temporary injunction is refused to be

granted, it would pave way for either of the parties before the Court to

alienate, sell, dispose of and/or change the nature of the property,

which is in dispute in the suit and in such situation the purpose of

litigation would be futile and/or endless for both the parties. Thus, as

can be professed from the Rule 1 of Order XXXIX, grant of

temporary injunction is to prevent damage or wastage to „any

property‟ which is in dispute in the suit.

12. In the above backdrop, it is worthwhile to mention here that the Trial

court has rightly exercised the discretion for grant or refusal of the

interlocutory order on the basis of material available. Therefore, there

is no scope to interfere into the impugned order passed by the Trial

court. Accordingly, this appeal is dismissed.

13. Copy be sent down.

(Tashi Rabstan) Judge Jammu 03.11.2021 Pawan Angotra Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No

PAWAN ANGOTRA 2021.11.03 15:31 I attest to the accuracy and integrity of this document