Anu Gupta vs Varsha Mahajan And Others
2021 Latest Caselaw 1355 j&K

                                                                Sr. No.

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                       Reserved on :        30.09.2021
                                       Pronounced on:       29.10.2021


                                                    MA No. 72/2019
                                                    CM No. 4183/2019

Anu Gupta                                                   .... Appellant(s)



                           Through:- Mr. L. K. Sharma, Sr. Advocate with
                                     Mr. Mohit Kumar, Advocate
             v/s

Varsha Mahajan and others                                ..... Respondent(s)


                            Through:- Mr. S. K. Anand, Advocate


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

1. Impugned by the appellant in the instant appeal is order dated

16.05.2019 (for brevity 'impugned order') passed by the Court of 2 nd

Additional District Judge, Jammu (for brevity 'trial court').

2. Before adverting to the grounds of challenge urged in the

memo of appeal a brief background of the case reveals that a suit for

declaration permanent prohibitory injunction came to be filed by the

predecessor-in-interest of the respondents herein, namely, Sh. Vijay

Kumar against the appellant herein with respect of land bearing Kharas

No. 162 min (29K) Khasra No. 162 (19 K 10M), 109 (21K, 12M) 160,

(10K 19M,) 156 (12M) 120 (2K 19M), 136 (2K 6M), 153 (2K 14M ), 128

(11K 9M), 126 (11K 11M), 130 (2K 14M), 149 (4K 11M), 123 min (5K

8M), 145 (4K 19M), 159 (3K 6M), 130 (2K 12M), 150 (4K 6M), 143 min

(2K 17M), 115 min (2K 11M), 116 (9M), 140 (1K 11M), 282 (4K 7M),

113 (18K 9M), 143 (2K 17M) situated at Kalu Chak then Tehsil Jammu

now Tehsil Bahu District Jammu claiming the said land to have been

taken on lease vide lease deeds registered on 02.08.1983, 27.08.1983 and

16.07.1983 for a period of 99 and 100 years respectfully. In the application

seeking interim relief accompanying the suit, an interim order came to be

passed by the trial court on 09.03.2009, directing the parties to maintain

status quo on spot with regard to the possession of the suit land.

3. The trial court upon considering the application for interim

relief for its final disposal passed the impugned order while allowing the

application, making the initial interim order dated 09.03.2009 as absolute.

4. The impugned order is being challenged inter alia on the

grounds that the interim order passed initially by the trial court on

09.03.2009 had lost its validity, in that, it had not been extended and it was

only time specific till filing of objections and also that there was no

documentary or other relevant record showing that the predecessor-in-

interest of the respondents had taken the land on lease or that the same had

been entered in the relevant revenue record by attestation of mutation or

else reflecting it in the possession of Vijay Kumar, and that there had been

a report of the Patwari on record reflecting that the land in question has

been sold by the co-sharers of the alleged lessor Vijay Kumar and that the

photostat copies of the lease deeds appended with the suit were not

admissible in evidence and that the trial court wrongly held the appellant

to have admitted the existence of the lease deeds and that the trial court

failed to take note of the said facts, inasmuch as, the fact that the lease

deeds had been in the name of M/s K. C. Vansapati and not in the name of

Vijay Kumar, as such, the impugned order passed by the trial court is

nonest in the eyes of law and that there has been no prima facie case or

balance of convenience in favour of the plaintiff entitling him to the grant

of injunction.

Heard learned counsel for the parties and perused the record.

5. Learned counsel for the appellant while making his

submission reiterated the contentions raised and grounds urged in the

memo of appeal so much so, raised a preliminary question that the trial

court over-looked the fundamental issue that the predecessors of the

plaintiffs/respondents herein who filed the suit had no locus to maintain the

same and, in that, said plaintiff was not having any right much less

recognized in law qua the land in question as the land in question as per the

own showing of the plaintiffs/respondents herein had purportedly been

leased out to M/s K. C. Vansapati and not to Vijay Kumar.

6. Learned counsel for the respondents, though did not deny the

said position yet defended the impugned order passed by the trial court and

sought dismissal of the appeal on the premise that the impugned order had

been passed by the trial court validly and legally.

7. Before adverting to the controversy involved in the instant

petition, it would be desirable and appropriate to refer to the ambit and

scope of Order 39 of the Code of Civil Procedure providing for temporary

injunction and interlocutory orders.

8. 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.

9. It is settled position of law that the power to grant injunction

is extraordinary in nature and 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.

10. The Apex Court in case titled as Agriculture Produce Market

Committee-Gondal and others vs. Girdharibhai Ramhbhai Chhaniyara

and others, reported in 1997 (5) SCC 468, has been held that a temporary

injunction can only be granted where the applicant seeking the relief shows

concluded right capable of being enforced and if the right is still at the

stage of embryo, no injunction can be granted. Here a reference to the

judgment of Apex Court passed in Dalpat Kumar and another vs. Prahlad

Singh and others, reported in 1992 (1) SCC 719, would also be relevant

and germane herein, wherein at para 5 it is observed as under:-

"Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction."

11. What emerges from the above position of law is that existence

of prima facie right and infraction of enjoyment of property or right is a

condition precedent sine qua non for claiming a temporary injunction.

12. It emerges from the record that the suit filed by the

predecessor-in-interest of the respondents, namely, Vijay Kumar had been

filed on the basis of lease deeds and a bare perusal of the said lease deeds

would reveal that the said Vijay Kumar is not a lessor in whose favour the

lease has been granted but instead is M/s K. C. Vansapati, Jammu through

Vijay Kumar.

13. The plaintiff in the suit has thus, misrepresented the facts so

much so, even in the application for interim relief supported with an

affidavit. Law is well settled that while considering an application for grant

of interim relief, it is incumbent upon the trial court before making an

order of injunction that the conditions specified in Clauses (a), (b) or (c) of

Rule 1 of Order 39 are present. Law is also settled that normally in an

application for temporary injunction, affidavit forms the sheet anchor and

the facts in connection therewith are proved on affidavit. Thus, at the stage

of deciding an application for temporary injunction, the Court is expected

to proceed on the face value of the documents produced by the party.

14. The trial court, however, admittedly, has overlooked this

position while passing the impugned order. The plaintiff/predecessor in the

facts and circumstances of the case can safely be said to have not

approached the Court while instituting the suit with clean hands, but

having misrepresented the facts which by no sense of imagination would

have entitled him to any kind of interim relief/injunction. Law in this

regard is no more res-integra that besides the three cardinal principles

governing and regulating the grant or refusal of an injunction being a prima

facie case (ii) balance of convenience, is in favour of the plaintiff and (iii)

irreparable injury if prayer for interlocutory injunction is disallowed, the

conduct of the party seeking an injunction has to keep in view. The

applicant seeking injunction has to come before the Court with clean hands

and has not to suppress material or relevant facts. If the conduct of the

person claiming an injunction is blame worthy, for the aforesaid reasons,

same would disentitle the applicant from praying injunction as has been

held by the Apex Court in case titled as Gujarat Bottling Co. Ltd. and

others vs. Coca Cola Co. and others, reported in 1995 (5) SCC 545. This

is based on the principle that the Court is supposed to know the law, but it

knows nothing about the facts, as such, it is incumbent on the applicant to

state the facts fully and fairly and if the applicant suppresses the material

facts or is not candid in stating the facts, the Court for its own protection

can refuse an injunction, so that there is no abuse of process of Court by an

unscrupulous litigant. A reference here in this regard to the judgments of

the Apex Court titled as State of Haryana and other vs. Karnal Distillery

Co. Ltd and another reported in 1977 (2) SCC 431, would be relevant and

germane.

15. For all what has been observed, considered and analyzed

hereinabove, there is merit in the instant appeal, therefore, the impugned

orders passed by the trial court on 09.03.2009 and 16.05.2019, are not

legally sustainable and thus, set aside.

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

be expression of any opinion about the merits of the case.

17. Disposed of along with connected CM, in the above terms.

(JAVED IQBAL WANI) JUDGE

Jammu 29.10.2021 Bir

Whether the order is speaking: Yes Whether the order is reportable: Yes