1. This Civil Miscellaneous Appeal is directed against the order dated 13th December, 2011, passed by Principal District Judge, Srinagar in a suit titled as Syed Hussain v. Mst. Nargis and others by virtue of which application for grant of ad-interim relief, filed in terms of Order XXXIX of the Code of Civil Procedure, for short as CPC, came to be granted and status quo till disposal of main suit, was ordered to be maintained, for short as impugned order.

2. Precisely the matter in controversy is that plaintiff-respondent No. 1 filed a suit for grant of decree of pre-emption and permanent injunction on the ground that he and defendant No, 1 i.e. Mst. Nargis Masarat, proforma respondent herein, have jointly purchased 30% share from three storied building situated at Kothi Bagh, Srinagar comprising 1 kanal and 12 marlas under survey No. 421/167 vide sale deed executed on 27th October, 2005. The remaining 70% of the said property was purchased by five other persons jointly, the particulars of which are given in the sale deed which is not the subject matter of the suit.

3. Defendant No.1 i.e. Mst. Nargis Masarat, proforma respondent herein, without informing the plaintiff-respondent No. 1 and without following the man#31;date of right of Prior Purchase Act sold her share out of the 30% of the undivided property in favour of defendants 2 and 4, appellants herein. Accordingly respon#31;dent no.1, plaintiff has based his claim in terms of provisions of the Act for grant of decree of preemption being a co-sharer and also on the grounds as were available to him in terms of provisions of the Act. Plaintiff, respondent No. 1 has also sought decree of permanent injunction restraining the defendants 2 and 4 i.e. appellants from changing the position of the suit property and from causing any interference in the present position of the suit property. Alongside the suit, plaintiff had moved an application for grant of ad-interim relief.

4. Defendants 2 and 4 i.e. appellants herein, resisted the claim by the medium of written statement. The main ground on which the claim was resisted was that the property is to be used commercially, therefore, provisions of the Act were not attracted and plaintiffs had no preference. Further it is resisted on the ground that plaintiffs have no primafacie case, balance of convenience tilts in favour of defen#31;dants and if the interim direction is made absolute, same would result in irreparable loss to the defendants, appellants, therefore, it is prayed that application be dis#31;missed.

5. Whether the suit property is commercial property or otherwise is a question to be gone through during trial.

6. In the very first instance, it would be profitable to reproduce Section 5 of the Act herein:-

"5. No right of prior purchase in respect of certain buildings

No right of prior purchase shall exist in respect of the sale of or foreclosure of a right to redeem,-

(a) a shop, serai or market or some other property used as a place for transaction of public business;

(b) a dharmsala, place of worship or other similar building. Explanation- In determining what building comes within the purview of this section the character of the accommodation provided therein, the place where the building is situated and the main use to which it naturally and most advantageously is adopted shall among other matters be taken into consideration.

7. It categorically provides for taking into consideration certain factors while determining the nature of the property. In order to see that the suit property is a commercial one or otherwise, primarily what is to be seen is, as to where the suit property is situated and what it is being used for. I am afraid that again these factors can be determined during trial.

8. Another aspect of the matter is, as to whether the plaintiff had carved out a prima-facie case in his favour and that the suit property is joint and undivided. The documents placed on record in the shape of sale deed and other documents, do dis

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