Jammu & Kashmir High Court
Suresh Kumari Sharma vs Nardev Lal on 9 February, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No. 24
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- CM(M) No. 190/2023
CM No. 6062/2023
1. Suresh Kumari Sharma, age 60 years,
D/o Late Sh. Kali Dass Sharma,
R/o Vill. Brij Nagar,
P.O. Miran Sahib, R. S.Pura, Jammu.
2. Vijay Sharma, age 40 years,
S/o Sh. Bhajan Lal,
R/o Vill. Brij Nagar,
P.O. Miran Sahib, R. S.Pura, Jammu.
3. Balbir Kumar, age 60 years,
S/o Sh. Daulat Ram,
R/o Vill. Brij Nagar,
P.O. Miran Sahib, R. S.Pura, Jammu.
4. Dinesh Sharma, age 52 years,
S/o Sh. Pokh Raj,
R/o Vill. Brij Nagar,
P.O. Miran Sahib, R. S.Pura, Jammu.
5. Jyoti Sharma, age 48 years,
S/o Sh. Lekh Raj,
R/o Vill. Brij Nagar,
P.O. Miran Sahib, R. S.Pura, Jammu.
.....Petitioners
Through: Mr. Himanshu Beotra, Advocate with
Mr. Rohan Kidar Sharma, Advocate
Vs
1. Nardev Lal,
S/o Late. Sant Ram
R/o Vill. Brij Nagar,
P.O. Miran Sahib, R. S.Pura, Jammu.
2. Vikas Sharma,
S/o Nardev Lal,
R/o Vill. Brij Nagar,
P.O. Miran Sahib, R. S.Pura, Jammu.
2 CM(M) No. 190/2023
CM No. 6062/2023
3. Vinod Sharma,
S/o Nardev Lal,
R/o Vill. Brij Nagar,
P.O. Miran Sahib, R. S.Pura, Jammu.
4. Vinay Sharma,
S/o Nardev Lal,
R/o Vill. Brij Nagar,
P.O. Miran Sahib, R. S.Pura, Jammu.
5. Ravinder Kumar Sharma,
S/o Sh. Badri Nath,
R/o Prem Nagar,
P.O. Miran Sahib, R. S.Pura, Jammu.
..... Respondent(s)
Through: Mr. A. G. Sheikh, Advocate
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
09.02.2024
(Oral)
01. 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.
02. 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.
03. 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.
04. 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.
05. 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.
06. 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.
07. 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.
08. 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.
09. 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.
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. 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. 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. 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.
(JAVED IQBAL WANI)
JUDGE
JAMMU
09.02.2024
Muneesh
Whether the order is speaking : Yes
Whether the order is reportable : Yes
