Mohammad Yousuf Basu vs Tariq Ahmad Basu
2024 Latest Caselaw 1500 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Mohammad Yousuf Basu vs Tariq Ahmad Basu on 27 September, 2024

Author: Vinod Chatterji Koul

Bench: Vinod Chatterji Koul

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR
                           ...
                           CM(M) no.300/2023

                                                   Reserved on: 19.07.2024
                                                 Pronounced on: 27.09.2024
Mohammad Yousuf Basu
                                                            .......Petitioner(s)

                               Through: Mr Rabinder Singh, Advocate,
                               Mr Aijaz Ahmad Ganie, Advocate

                                   Versus

Tariq Ahmad Basu
                                                          ......Respondent(s)

                               Through: Mr Rizwan ul Zaman, Advocate


CORAM:
          HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                              JUDGEMENT

1. Petitioner is aggrieved of Order dated 27th September 2022, passed by

Sub Judge, Bijbehara (for short "Trial Court") in a civil suit titled as

Mohammad Yousuf Basu v. Tariq Ahmad Basu, dismissing application

for interim relief, and seeks setting-aside thereof on the grounds made

mention of in the instant petition. He also prays to set-aside order dated

3rd August 2023 passed by Principal District Judge, Anantnag, in an

appeal titled as Mohammad Yousuf Basu v. Tariq Ahmad Basu.

Setting-aside of the report of Commissioner dated 8th April 2022 is also

being sought, with a direction to prohibit respondent from interfering

with the peaceful possession of suit property.

2. Heard and considered.

Page 1

3. Petitioner has filed a civil suit for injunction before the Trial Court,

stating therein that he is a tenant in possession of a shop situated at

Goriwan, Bijbehara, for which he executed rent agreement with

Executive Officer, Municipal Corporation, Bijbehara, on 4th March

2022. It is also stated by him that he is regularly paying rent and that

defendant/respondent herein, who is his brother, is interfering in the

demised shop. Plaintiff/petitioner has sought a direction upon

defendant/respondent to refrain him from interfering with the peaceful

possession of the plaintiff with respect to the suit shop. Defendant/

respondent caused his appearance before the Trial Court, in which he

pleaded that suit shop was actually in the name of Abdul Rehman Basu,

who transferred it in the name of petitioner, respondent and two other

brothers some 22 years back. The rent agreement was executed in the

name of petitioner with Municipal Committee, Bijbehara, because all

other three brothers were minors including respondent. Defendant also

has stated that in the year 2017 a dispute arose between four brothers

with regard to distribution of ancestral property including shop in

question and by way of family settlement, dispute was resolved and

shop in question fell in the share of petitioner and respondent. The Trial

Court by impugned order dated 27th September 2022, rejected interim

application and vacated interim order dated 19th May 2022. Petitioner

moved an appeal against impugned order dated 27th September 2022,

which came to be dismissed vide order dated 3rd August 2023.

4. Learned counsel for petitioner has stated that Trial Court has exceeded

its powers while passing order impugned as it has not provided chance

of being heard to petitioner. While this fact was brought before the

Page 2

Appellate Court, but it also did consider the same. Trial Court has not

appreciated material produced by parties. Trial Court has failed to

appreciate that object of temporary injunction is to preserve the subject

matter of Lis. The Trial Court has failed to appreciate cardinal

principles of injunction. Impugned order has occasioned failure of

justice as Trial Court has failed to give interim protection inasmuch as

it came to wrong conclusion that petitioner has no prima facie case and

balance of convenience does not tilt in his favour and that petitioner

will not suffer any irreparable loss. He also states that it is specifically

mentioned in the plaint as well as confirmed by Commissioner report

that petitioner is in possession of suit shop.

5. Per contra, it is insisted by learned counsel for respondent that

petitioner has suppressed the material facts before the Trial Court.

Petitioner has not come with clean hands either before Trial Court,

Appellate Court and before this Court. Petitioner has not even made a

slight in his suit about the fact that defendant is his brother. Petitioner

has not been able to show from which date he is in exclusive possession

and ownership of suit shop. Suit shop was in the name of Abdul Reman

Basu, who was maternal grandfather of parties and some twenty years

back he gave shop to parties and their two brothers. Petitioner is elder

brother of respondent and two other brothers and at that time,

respondent and two other brothers were minor, so agreement was

executed in the name of petitioner. However, electricity connection for

the suit shop is in the name of respondent. Two other brothers took their

share in the year 2017. He has vehemently argued that institution of

Page 3

instant petition is to procrastinate the proceedings pending before the

Trial Court.

6. Order XXXIX Rule 1 CPC provides that 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, 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.

c) that the defendant threatens to dispossess the plaintiff or otherwise causes injury to the plaintiff in relation to any property in dispute in the suit Provided that the Court before granting any injunction shall invariably call upon the applicant to satisfy it by an affidavit or otherwise that not suit of similar nature is pending in or has already been decided by any court of competent jurisdiction.

7. It is well settled that before granting injunction and considering prayer

for discretionary relief, the court must be satisfied that the party praying

for relief has a prima facie case and balance of convenience is also in

its favour. While granting injunction, if any, the court is also required

to ascertain whether refusal to grant injunction would cause irreparable

loss to such party. Apart from aforesaid well-established parameters/

ingredients, conduct of a party seeking injunction is also of utmost

importance. Reliance in this regard is placed on judgment rendered by

Page 4

the Supreme Court in case M/s Gujarat Bottling Co.Ltd. & ors v. The

Coca Cola Co. & others, AIR 1995 SC 2372.

8. Where both sides are exposed to irreparable injury pending trial, the

courts have to strike a just balance, the court considering an application

for injunction has four factors to consider: first, whether plaintiff would

suffer irreparable harm if injunction is denied; secondly, whether this

harm outweighs any irreparable harm that defendant would suffer from

an injunction; thirdly, the parties relative prospects of success on the

merits; fourthly, any public interest involved in the decision. The

central objective of interlocutory injunctions should, therefore, be seen

as reducing the risk that rights will be irreparably harmed during the

inevitable delay of litigation.

9. If a party seeking injunction fails to make out any of the three

ingredients, it would not be entitled to injunction. Phrases, "prima facie

case", "balance of convenience" and "irreparable loss", have been

beautifully interpreted/defined by the Supreme Court in a case titled as

Mahadeo Savlaram Shelke v. The Puna Municpal Corpn., (1995) 3

SCC 33.

10.While relying upon its earlier judgment in Dalpat Kumar v. Prahlad

Singh, (1992) 1 SCC 719, it was held by the Supreme Court that:

"...the phrases "prima facie case", "balance of convenience"

and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima fade right and infraction of the

Page 5

enjoyment of him property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. 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. The balance of convenience must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. The court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."

11.The Supreme Court in Shiv Kumar Chadha v. Municipal Corporation

of Delhi, 1993 SCC (3) 161, held "a party is not entitled to an order of

injunction as a matter of course. Grant of injunction c is within the

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

of the plaintiff only if it is proved to the satisfaction of the court that

unless the defendant is restrained by an order of injunction, an

irreparable loss or damage will be caused to the plaintiff during the

pendency of the suit. The purpose of temporary injunction is, thus, to

maintain the status quo. The court grants such relief according to the

legal principles - ex debito justitiae. Before any such order is passed

Page 6

the court must be satisfied that a strong prima facie case has been made

out by the plaintiff including on the question of maintainability of the

suit and the balance of convenience is in his favour and refusal of

injunction would cause irreparable injury to him. Further the court

should be always willing to extend its hand to protect a citizen who is

being wronged or is being deprived of a property without any authority

in law or without following the procedure which are fundamental and

vital in nature. But at the same time the judicial proceedings cannot be

used to protect or to perpetuate a wrong committed by a person who

approaches the court".

12.Thus, existence of three basic ingredients i.e. prima facie case, balance

of convenience and irreparable loss or injury, is mandatory for passing

an order of injunction under Order XXXIX, Rules 1 and 2 CPC. It is

also well settled by now that aforesaid three ingredients are not only to

exist but must coexist. In this regard, reliance is placed upon judgment

rendered by the Supreme Court in Best Sellers Retail (India) Private

Ltd v. Aditya Birla Nuvo Ltd and others, (2012) 6 SCC 792 , in which

it has been held 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.

13.Mere 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 it 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

Page 7

consequences of apprehended injury. 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. Since

purpose of temporary injunction is to maintain status quo, court, while

granting such relief, should be satisfied that prima facie case has been

made out and balance of convenience is in favour of the plaintiff and

refusal of injunction would cause irreparable loss and injury to him.

14.In the case in hand, the Trial Court, while considering the rival

contentions and respective stand of the parties, has said that plaintiff/

petitioner has concealed material fact that parties had been carrying on

business jointly and plaintiff has not come to the court with clean hands

inasmuch as he has failed to disclose all material facts in his plaint.

After saying this, the Trial Court rejected interim application and

vacated interim order, which, having regard to above discussion, does

not call for any interference.

15.Insofar as Appellate Court order is concerned, the Appellate Court has

found, and said so, that petitioner and respondent herein are brothers;

petitioner is elder brother of respondent; the rent deed was executed by

petitioner with Municipal Committee, Bijbehara, when respondent and

two other brothers were minors. After partition, suit shop came in the

share of petitioner and respondent and this is the reason that if rent deed

is in the name of petitioner, the electricity connection is in the name of

respondent, which fact has not been disputed by petitioner and

consequently, they are brothers and co-sharers, entitled to equal share

in the business/shop. The Appellate Court has also rightly said that if

Page 8

respondent is kept away from shop and its business, it will cause

irreparable loss to him. After holding so, the Appellate Court dismissed

the appeal of petitioner.

Both the orders impugned of the Trial and Appellate Courts are

well-reasoned orders, need not to be interfered with.

16.For the reasons discussed above, the instant petition is devoid of any

merit and is, accordingly, dismissed. Interim direction, if any, shall

stand vacated.

17.Copy be sent down.

(Vinod Chatterji Koul) Judge Srinagar 27.09.2024 Ajaz Ahmad, Secy.

Whether approved for reporting? Yes/No.

Page 9