The court emphasized that for granting a temporary injunction, the petitioner must establish a prima facie case, balance of convenience, and irreparable loss, which were not met in this case.

JUDGMENT :

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.

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 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 min