JAMMU AND KASHMIR HIGH COURT
Rahul Bharti, J.
Mohd. Yasin —Petitioner
versus
Mohan Lal and Ors. —Respondents
OW104 No.105 of 2013, IA No.111 of 2013
Decided on 12.5.2022

IMPORTANT POINTS
(1) Temporary injunction—In the matter of adjudication of a temporary injunction, contention of parties to lis are meant to be considered objectively by court as a finding on prima facie case would be a finding of fact sustaining a conclusion that a case for trial has been made out and there are other requisite factors weighing for grant of injunction.
(2) Appellate Jurisdiction—Appellate court can see and examine legality of an order passed under Order 39 Rules 1 and 2 of CPC.
(3) Supervisory Jurisdiction—High Court’s power of interference/indulgence with an interlocutory order of subordinate court is circumscribed with scope only to the extent that in case trial court has acted without jurisdiction or in excess and order resulting in failure of justice.

Headnote:

(A) Civil Procedure Code, 1908—Order XXXIX Rules 1 and 2 read with Section 151—Temporary injunction—Grant of—Adjudication of matter under Order 39 Rules 1 and 2 CPC by a civil court in a civil suit is done in and under alleged facts and counter facts, which are in a state of haze, and interplay of supporting documents set up in respective pleadings of parties—This adjudication, by its nature, is in domain of discretion to be exercised bearing guidance of well entrenched parameters; (i) prima facie case, (ii) balance of convenience and (iii) irreparable injury—Seriousness attending exercise of discretion to issue or not a temporary injunction under Order 39 Rules 1 and 2 CPC by a civil court in any given cause can be gauzed from perspective that it is recognized that grant or refusal of a temporary injunction has serious consequences depending upon nature thereof and in dealing with such matters court(s) must make all endeavours to protect interest of parties—In the matter of adjudication of a temporary injunction, contention of parties to lis are meant to be considered objectively by court as a finding on prima facie case would be a finding of fact sustaining a conclusion that a case for trial has been made out and there are other requisite factors weighing for grant of injunction. (Para 26)

(B) Civil Procedure Code, 1908—Order XXXIX Rules 1 and 2—Temporary injunction—Grant of—Trial court bears a very demanding duty to consider and decide a temporary injunction application in a matter not only by an active application of mind to full facts, pleaded directly as well as inferentially, and substantive law applicable thereupon but also timely and expeditiously without letting any procrastination lest main lis starts suffering suffocation and frustration from perspective of deserving party in suit—Languishment of determination of temporary injunction application in a civil suit is painful and distressing. (Para 26)

(C) Civil Procedure Code, 1908—Order 43 Rule 1 (r) and Order XXXIX Rules 1 and 2—Appellate Jurisdiction—Appellate court can see and examine legality of an order passed under Order 39 Rules 1 and 2 of CPC—An appeal against an order of grant/non grant of a temporary injunction in a civil suit is said to be an appeal on principle because order passed by civil court is borne out of its judicially exercised discretion—Appellate Court is not meant to substitute its own view in the matter merely on the ground that in its opinion facts of case called for a different conclusion because such an exercise would not be a correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order—Being an appellate court it has jurisdiction to examine as to whether or not trial court has passed order under appeal upon taking care to make appreciation and appraisal of facts and circumstances, in their fullness, of case and understanding of law attending thereupon—If same is found to be done then there cannot be substitution of opinion taking place in appeal. (Para 27)

(D) Constitution of India—Article 227—Supervisory Jurisdiction—High Court’s power of interference/indulgence with an interlocutory order of subordinate court is circumscribed with scope only to the extent that in case trial court has acted without jurisdiction or in excess and order resulting in failure of justice—High Court is not supposed to assume role of a court of appeal under Article 227 jurisdiction—In a case where a civil court in passing an order with respect to issuance or non issuance of a temporary injunction in a matter is found to be amiss in its application of mind by keeping in view full factual aspect of case then scope for interference by appellate court in appeal under Order 43 Rule 1(r) Code of Civil Procedure would be made out—In exercising its appellate jurisdiction available within scope of Order 43 Rule 1(r) of Code of Civil Procedure, Appellate Court did not fell into error of understanding as to facts of case in context of dealing with application of temporary injunction—Such Order would warrant no interference of this Court under Article 227 of Constitution of India. (Paras 30 and 34)

Result: Petition dismissed.