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2019 Supreme(J&K) 256
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Tashi Rabstan, J.
Tariq Ahmad Bhat and Anr. – Appellant
Versus
Iqbala Akhter and Ors. – Respondents
WP(C) No.1750/2019 and CM No.3314/2019
Decided on 2.7.2019
For the Petitioner(s):Mr M. A. Qayoom, Advocate
For the Respondent(s):Mr R. A. Jan, Senior Advocate with Ms Sharaf Wani, Advocate
Headnote:
Specific Relief Act, 1963---Section 38 – Civil Procedure Code, 1908---Order XXXIX Rules 1 and 2 – Injunction – Court has no jurisdiction to grant by way of interim relief what could never be granted in main suit itself – In interlocutory proceedings, court can express only its tentative view which does not cause any prejudice to concerned party – Grant or refusal of interim injunction determines fate of a suit – Due care and caution has to be bestowed by court while granting or refusing an injunction – Measures should be taken by court to ensure even-handed justice to both parties – Where no violation of rights of plaintiff is involved, interim injunction should not be granted – Injunctions and stay orders should not be granted mechanically without realising harm likely to be caused to opposite party – It is only when a claim is made in suit which, if established, would entitle plaintiff to relief by way of injunction, that interim relief could be granted by way of temporary injunction, so that a relief in suit might not be rendered infructuous – If no such relief is claimed, no interim injunction could be granted – Injunction will not be granted where plaintiff has a remedy by way of damages – Injury must be irreparable and it must be continuous. (Paras 7, 7.1, 12, 15, 15.1, 15.2 and 15.3)
JUDGEMENT :
1. A civil suit titled Tariq Ahmad Bhat and another v. Iqbala Akhter and others, for grant of declaration with consequential relief of mandatory injunction, has been filed by present petitioners/plaintiffs against respondents/defendants before the court of Additional Special Mobile Magistrate, Kulgam (for brevity “Trial Court”) on 5th May 2017. Threshold ad interim injunction was passed by Trial Court on 6th May 2017 (Annexure XI to petition), which was subject to objections from other-side. Written statement (Annexure XII to petition) was filed by respondent / defendant no.1 in opposition to the suit of petitioners before Trial Court. By order dated 19th December 2017, Trial Court made absolute ad interim order dated 6th May 2019.
2. Aggrieved of aforesaid order dated 19th December 2017, passed by Trial Court, respondent no.1 herein preferred a Civil Miscellaneous Appeal before Principal District Judge, Kulgam (for short “Appellate Court”). After considering rival contentions of parties, learned Appellate Court vide order dated 11th May 2019 set-aside the Trial Court order dated 19th December 2017, vouchsafing liberty to respondent no.1/appellant to take up the matter with bank authorities for freezing her account. It is this order, of which petitioners are aggrieved and throw challenge thereto in terms of present writ petition, filed under Section 104 of the Constitution of J&K State and implore setting-aside thereof.
3. I have heard learned counsel for parties and considered the matter.
4. Learned counsel appearing for petitioners has stated that appellate Court while passing order impugned has not considered the case in its right and proper perspective inasmuch as it has not taken into account all what had been projected by petitioners before it. Learned counsel has also averred that appellate court, while passing impugned order, has relied on Clause 46 of the Agreement executed by respondent no.1 with Indian Oil Corporation, but it has lost sight of the fact that petitioners have been running petrol pump for last so many years with the consent of Indian Oil Corporation and even said Corporation has not raised any objection qua running of the petrol pump by petitioners. According to learned counsel, respondent no.1 is neither in possession of petrol pump nor operating bank accounts from the date she entered into deed of dissolution of partnership with petitioner no.1. His next averment is that appellate court ought not to have set-aside Trial Court order as once the court of first instance exercises its discretion to grant or refuse relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court should be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity. To buttress his arguments, learned counsel has placed reliance on judgement(s) rendered in Seth Loon Karan Sethiya v. Ivan E. John and others, AIR 1969; SC 73; Dalpat Kumar and another v. Prahlad Singh and others, AIR 1993 SC 276; Skyline Education Institute (Pvt) Ltd. v. S. L. Vaswani and others (2010) 2 SCC 142; State of Jharkhand v. Surendra Kumar Srivastava and others, AIR 2019 SC 231.
5. On the other hand, learned senior counsel representing respondent no.1 has insisted that subject-matter of the civil suit viz. land in question, has been leased out to Indian Oil Corporation for a period of 30 years in terms of a registered Lease Deed executed by respondent no.1 and therefore, no question arises for selling or alienating the said land to any person muchless petitioners. If any document with respect to already leased out land for alienation thereof, is executed, the same is per se void ab initio and unquestionably forged as well. He insists that imp
