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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Alok Aradhe, J.
Ab. Rashid Wani and Others – Appellants
Versus
Altaf Hussain and Others – Respondents
OW-104 No. 31 of 2018, M.P. No. 01 of 2018
Decided On : 14-03-2018
Injunction - Civil Procedure - Order 39 Rule 3, Order 43 Rule 1 - The court discussed the application of Order 39 Rule 3 of the Code of Civil Procedure in granting an ex parte injunction and the maintainability of an appeal under Order 43 Rule 1. The court also highlighted the legal principles regarding the discretionary nature of granting injunctions and the need for compliance with procedural requirements.
Fact of the Case:
The petitioners sought to challenge the validity of an ex parte injunction granted by the Trial Court, which was upheld by the Lower Appellate Court. The petitioners claimed to be the owners of land and had obtained permission for construction. They filed a caveat to be heard before any orders were passed against them. Subsequently, a civil suit was filed against them seeking to stop the construction and obtain a mandatory injunction for demolition.
Finding of the Court:
The court found that the appeal against the ex parte injunction was not maintainable under Order 43 Rule 1 of the Code of Civil Procedure. However, it noted that the Trial Court had fulfilled the requirements of Order 39 Rule 3 by implication, and therefore, the injunction order was valid. The court granted the petitioners the liberty to file an application seeking vacation of the injunction before the expiry of 30 days.
Issues: The issues considered by the court were whether the Trial Court was justified in granting the ex parte injunction and whether the appeal against the Trial Court's order was maintainable.
Ratio Decidendi: The court emphasized the discretionary nature of granting injunctions and the need for compliance with procedural requirements under Order 39 Rule 3 of the Code of Civil Procedure. It also clarified the limitations on the appeal process under Order 43 Rule 1.
Final Decision: The court quashed the order of the Lower Appellate Court and granted the petitioners the liberty to file an application seeking vacation of the injunction before the expiry of 30 days. It also allowed the petitioners to approach the Principal District Judge, Jammu regarding the tagging of their caveat with another suit.
JUDGMENT :
Alok Aradhe, J.
1. In this petition under Section 104 of the Constitution of the State of Jammu and Kashmir, the petitioners inter alia have assailed the validity of the order dated 07.03.2018 passed by lower Appellate Court, Jammu by which order granting ex parte injunction dated 22.02.2018 passed by the Trial Court has been upheld. The petitioners also seek probe into the facts and circumstances leading to by-passing of caveat petition filed by petitioners on 17.01.2018 and transfer the appeal filed by the petitioners from the Principal District Judge, Jammu to the Court of 2nd Additional District Judge, Jammu, that too without issuing notice in order to streamline the justice dispensation system.
2. Facts giving rise to the filing of the writ petition briefly stated are that petitioner No. 1 is the attorney holder of petitioners 2 and 3. The petitioners No. 2 and 3 claim to be owner and in actual physical possession of land ad measuring 5 kanals comprising Khasra No. 93 min, Khata No. 612 and Khewat No. 225 situated at ward No. 71, Sidhra, Jammu. The aforesaid land was purchased by the petitioners 2 and by two separate sale deeds dated 26.02.2016 and 16.03.2016 which was duly registered by Sub-Registrar Excise Magistrate, Jammu. Thereafter, the names of the petitioners No. 2 and 3 were duly mutated in the revenue records. The petitioners No. 2 and 3 submitted an application on-line, to the Commissioner, Municipal Corporation, Jammu for granting injunction for construction of a Commercial building on the aforesaid land on 06.07.2016. After obtaining permission of various departments, the Building Operations and Controlling Authority in its meeting held on 04.03.2017 issued no objection certificate in favour of the petitioners No. 2 and 3. It is the case of the petitioners that respondents being neighbours are very well known to the petitioners and respondent No. 1 being a practicing lawyer, the petitioners used to have his guidance and advice for preparing the documents required for obtaining permission/ approval for construction of shopping mall on the land in question. The petitioners filed a caveat on 17.01.2018 on the ground that they are going to raise construction on their own land after getting due permission and if any proceeding is initiated against the caveators, they should be given the opportunity of being heard before passing of any orders against them.
3. A suit for permanent prohibitory injunction was filed on 21.02.2018 by one Shamas Ali in respect of land measuring 2 kanals and 10 marlas forming part of Khasra No. 99/1 situated at Sidhra, Tehsil and District Jammu. The petitioners had no connection with the aforesaid land. However, the caveat filed by the petitioners was tagged with the aforesaid civil suit in which no interim order was granted and the case was fixed for 07.03.2018. Thereafter on 21.02.2018 itself, second suit was filed in which a declaration was sought that the petitioners are raising construction of a commercial building on the agricultural land admeasuring 5 kanals forming part of Khasra No. 93 min, Khata No. 612 min and Khewat No. 225 situated at ward No. 71, Sidhra Jammu. In the aforesaid civil suit, declaration was sought that the aforesaid construction was illegal and no permission has been obtained. The plaintiffs in the aforesaid suit also sought relief of mandatory injunction directing the defendants to demolish the construction raised by them and also sought the relief of permanent prohibitory injunction restraining the defendants namely the petitioners from obstructing the free flow of light, air and sun to the house of the petitioners.
4. In the aforesaid civil suit, the Trial Court passed an ex parte order of injunction on 22.02.2018. Being aggrieved, the petitioners preferred an appeal. However, the appeal preferred by the petitioners was also dismissed. In the aforesaid factual background, the petitioners have approached this Court.
5. Learned Senior Counsel for the peti
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