M:s steel.pdf

Malik mohalla Kupwara | Kupwara | Jammu and Kashmir | 193222

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. Before the Hon'ble Court of :
—, PRINCIPAL DISTRICT JUDGE
Kupwara ‘

IN THE CASE OF:-

1, M/S BROTHERS STEEL & CEMENT
Bypass Road, Kupwara
Through
Ghulam Nabi Bhat (Aged 55 years) : ;

S/o Haji Assad-u-llah Bhat
R/o Bumhama, Tehsil Drugmulla District Kupwara.

2. M/S NAZAKAT READYMADE GARMENTS
Bypass Road, Kupwara 3
Through ;
Khursheed Ahmad Bhat (Aged 46 years)

S/o Abdul Khaliq Bhat
R/o Lankreshan, Vilgam District Kupwara

3. M/S SHEIKH DRY FRUITS
Bypass Road, Kupwara
Through
Mukhtar Niyaz Sheikh (Aged 53 years).

S/o Ghulam Mohi-ud-Din

R/o Halmatpora, Tehsil & District Kupwara

: « [Appellants]
Versus
1. GHULAM HASSAN MIR
2. MOHAMMAD SHAFI MIR
a a
Both sons of Ali Mohammad Mir
Residents of Kupwara Tehsil: Kupwara
. ..[Respondents]

a

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N THE MATTER OF:

CIVIL MISCELLANEOUS APPEAL IN
TERMS OF ORDER 43 RULE 1 (R) OF
CPC, AGAINST THE ORDER DATED: 19-
06-2025 [Hereinafter shortly referred as the
impugned order] PASSED BY THE
HON’BLE COURT OF SUB-JUDGE/
CIVIL JUDGE [SENIOR DIVISION],
KUPWARA [Hereinafter shortly referred as
the Ld. Trial Court], IN CIVIL
MISCELLANEOUS APPLICATION NO.
65/2023 FOR GRANT OF INTERIM
RELIEF, ARISING OUT OF CIVIL.
ORIGINAL SUIT PENDING FOR THE
RELIEF OF PERMANENT INJUNCTION

MAY IT PLEASE THE HON’BLE COURT, |,
The appellants most respectfully submit as under: -

1. That the appellants are the permanent residents of Union
Territory of Jammu & Kashmir, and are citizens of India,
and being aggrieved& dissatisfied by the impugned order
have invoked the jurisdiction of this Hon’ble Court by way

of present appeal.
. 2, That appellants are aggrieved of the order dated 19.06.2025
passed by Ld. court of Civil Judge Senior : Division/Sub
Judge Kupwara in civil Misc. Application No. 65/2023
arising out of Civil suit titled M/s Brothers Steel and
an Mir and Ant. Copy of the :

Cement and Ors Vs Gh, Hass Sg de

order impugned herein is appended herewith and marked

as ANNEXURE-I for kind perusal of this Hon'ble Court.

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That shorn of the details, for an effective & complete : |
adjudication, better appreciation, thoughtful & anxious
consideration & understanding of the merits of the present
case are shortly reproduced as under:- :

i) That, the appellants are the reputed and registered
businessman having three separate business
establishments/shops/trade units on ‘rental basis at
Bypass Road Kupwara and are operating /running
their business from these rented shops from decades.
Copies of the registration certificates reflecting the said
fact are appended herewith and collectively marked as
ANNEXURE-II for kind perusal of this Hon'ble Court.

ii) That the respondents being the owners of the
commercial building and landlords have rented out
the said shops in favour of the appellants after
execution of proper rent agreements, As such the
appellants having invested a huge amount in their
business and earning their livelihood from the said
business. The appellants having regularly paid the
rental towards the landlord/respondents till date
without any delay or default and are thus enjoying the
lawful occupation of the said shops, however, from
last sometime the respondents have denied to extend
the rent agreements. Copies of the agreements

reflecting the said fact are annexed. herewith and
marked as ANNEXURE-II. :

iii) That the respondents having deceitfully applied for
building permission to raise construction afresh after
pulling down the said building including the demised
shops without proper permission, consent and notice
of the appellants, whose families are dependents

solely on the income arising out of these business

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iv)

establishment, as such their unwarranted and illegal
dislodgment/ ejectment and evittion would be
detrimental for the rights of the appellants as well as
would adversely affect the rights of the families of the
appellant including the salesman working in these
business units, :

That the appellants having invested a very huge
amount on the rhaintenancd: beatification,
electrification, furniture etc over their respective trade
units besides that goods and articles, worth crores are
lying inside their respective business units/shops.
Greed has prevailed upon the respondents (landlords)
who have approached to Municipal Committee
Kupwara for grant of building” permission for
converting the shops into a multistoried commercial
complex and tried to dispossess the appellants forcibly
from their respective shops which: constrained the
appellant to jointly file a suit for permanent
prohibitory injunction before the Ld. Court of
Principal District Judge, Kupwara, which was
transferred to the court of Sub judge Kupwara for
disposal under law. It is worthwhile: to mention here
that on presentation of the suit, the appellants along-
side the main suit filed an application for grant of ad-
interim relief and the Hon'ble Court of Sub Judge
Kupwara, by virtue of order dated 23.05.2023 directed
the parties to maintain status-quo with regard to the
suit property. Copy of the plaint as also the order

dated 23.05.2023 passed therein are appended *

herewith and collectively marked as ANNEXURE-IV
for kind perusal of this Hon'ble Court.

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oat

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vy)

vi)

vii)

That despite of the order of status-quo passed by the
ld. court below, the respondents were making every
attempt and effort to defeat the order of status quo
passed by the Hon'ble Court of sub Judge Kupwara in
favour of the appellants, the appellants, therefore,
were constrained to seek implementation of the
interim order through SHO PS Kupwera. A copy of
the order dated 28.09.2024 passed by the Hon'ble
Court is annexed as ANNEXURE-V

That the respondents filed their objéctions/ written
statement and have admitted that the gutt shops were
rented out to the appellants w.ef 1996 onwards as
such the appellants are enjoying the possession of the
shops on the basis of duly notarized rent agreements
from last decades together and the forcible eviction at
this stage was absolutely detrimental to the interests of
the appellants. Copy of the objections: are appended
herewith and marked ANNEXURE-VI for kind
perusal of this Hon’ble Court. i

That during pendency of the suit the respondents have
filed an application for grant of permission seeking
reconstruction of the building on the ground that the
building is rendered unsafe for business operations,
while as the appellants filed an application before the
1d. court below seeking appointment of Commissioner
comprising of an advocate and an engineer/ employee
from R&B Department so as to ascertain the life of
building and apprehension of its alleged collapse.
Copy of the application filed by the appellants before
the Ld, trial court is appended herewith and marked

as ANNEXURE-VIL

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ix)

x)

' viii) That the application seeking vacation of interim order

was taken up for disposal by the Id. court below and
by virtue of the impugned order the 1d. trial court after
having failed to appreciate that the appellants are in
settled possession and cannot be dispossessed without
due process of law has vacated the interim protection
granted to the appellants at the time of filing of the
suit by virtue of order dated 23.05.2023.

That the Id. trial court has committed a, grave error in
placing undue reliance on the lack. of registered
tenancy agreements and overlooked the principal that

injunctions are maintainable to protect possession

against forcible dispossession, even were titled or

lease is disputed as has been laid down by the Hon'ble
Supreme Court. The ld. trial court has also failed to
appreciate that even if the tenancy ‘had expired,
unauthorized possession after expiry of lease does not
authorize self-help eviction by the ‘landlord. The
balance of convenience, irreparable injury and the
prima-facie case were all in favour of the appellants.
The law is well settled that possession even if
unauthorized is protected against unlawful
dispossession. The Id. court below without even
securing the interests of appellants has virtually

decreed the suit and nothing has remained for further
adjudication.

That the Hon’ble Court below has finally heard the

appearing counsels for the respective parties and has

decided the application by virtue of impugned order
dated: 19-06-2025,

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b)

si) That the impugned order being bad in the eves of law
is accordingly assailed before this Hon'ble Court for
the following facts, reasons & grounds:-

GROUNDS:

For that the order impugned is patently illegal and
erroneous as the Id. court below has erred both legally as
well as factually while passing the order impugned.
Therefore, the order impugned cannot stand on the pedestal
of law and thus deserves to be set aside by this Hon'ble
Court.

For that ld. court below has erred in holding that mere

absence of a registered lease deed disentitles the appellants

from protection under law contract to settled position of law

laid down in Krishna Ram Mahale Vs Shobha Venkat Rao
and KK Verma Vs. Union of India which hold that
possession even if unauthorized cannot be disturbed

without due process of law. Therefore, the order impugned

* dated 19.06.2025 passed by the Ld. court of Sub Judge

Kupwara in,case titled M/s Brothers steel and Cement and
Ors Vs. Gh. Hassan Mir &Anr is liable to be set aside by

this Hon'ble Court.
For that the trial court has failed to appreciate that the

appellants were in continuous and settled possession of the

shops from decades together and any interference without

court order would amount to illegal dispossession, making

out a strong prima-facie case. The Id. court below ignored

the test of prima-facie case, balance of convenience and

irreparable injury, despite clear material establishing all the
appellants. Therefore, the order

three in favour of the
ad- interim order

impugned dated 19.06. 2025 whereby the

granted in favour of the appellants has been vacated which

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i
F

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is steering harsh against the appellants and thus deserves to
be set aside by this Hon'ble Court.

d) For that while dismissing the interim ‘application of
appellants, the ld. court below has indirectly allowed the
landlords/respondents to evict the appellants forcibly
which would defeat the very purpose of the suit and cause
irreversible harm to the appellants. The settled position laid 5
down in KK Verma vs. Union of India that possession even
without title must be protected. A tenant or occupant
therefore, cannot be thrown out without following due legal
recourse. The vacation of interim protection exposes the
appellant to imminent risk of forcible eviction, loss of
business and irreparable financial injury. Therefore, this
Hon'ble Court may be pleased to exercise indulgence and
set aside the order impugned dated 19.06. 2025.

e) Because the impugned order has resulted in manifest
injustice to the appellants, virtually pre-judging the suit and
leaving the appellants remediless, which is contrary to the
fundamental principles of equity, justice, and fair play.

f) That the Ld. Court below refrained from entering into the
question rights of the parties on the ground’ that it involved
investigation into disputed questions of facts. That the
impugned order is illegal, improper, defective & perverse in
the eyes of law, as such merits to be set aside at its outset

g) That the Ld, Trial Court has not applied its judicial mind
upon facts & pleadings set out by the respective parties. The
Hon'ble courts, dealing with such matters, is expected to
make all endeavours to protect the interest of the parties.
For the said purpose application of mind on the part of the
Hon'ble courts is imperative.

h) That the Ld, Trial Judge has not returned finding on the
three cardinal principles laid down for grant or refusal of

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th
e interim relief, but has passed the j impugned order on
presumptions & assumptions,

That the Ld. Trial Court has not appreciated the law and the
judgments submitted by the appellants/ plaintiffs and has

omitted to consider the fact that the triable issues are
involved in the case, inasmuch as the fact that 'the eviction of

the plaintiffs/appellants would render them jobless and °
would cause heavy & irreparable loss to them,

j) That the Ld. Trial Court has not considered the documents

placed by the plaintiffs/appellants on record and has not
returned any finding on the principles as to whether the
balance of convenience tilts in favour of the plaintiff and
whether the purpose of filing suit would be defeated and .
the plaintiffs would be exposed to irreparable loss, in the
event the interim injunction order is not made absolute or
otherwise, but the Ld, Trial Court has in a very strange and
surprising manner omitted to return finding on the cardinal
principles laid down for grant or refusal of the interim relief.
k) It is further averred that the plaintiffs/ appellants are in
actual physical possession of the suit property since
decades, but the defendants/respondents have not raised
any counter claim or filed any separate suit for eviction &
consequential relief with regard to the suit property, but the
Ld Trial Court has travelled beyond pleadings and has
virtually given a free hand to the respondents to eject/ evict
the plaintiffs/appellants forcibly from the suit property.
After all in view of the conflicting & contradictory claims, it
is submitted that the parties to the suit are at variance, as F

})

such triable issues are involved in the suit, but the Ld. Court
below has ignored this legal é& factual aspect.

That the plaintiffs/appellants have a strong prima facie

m)
inasmuch as balance of convenience also lies in favour

case,

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n)

i)

Pp)

’ determination,

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of the plaintiffs/appellants & vacating or withdrawing or
modifying or withholding the interim relief at this stage
would cause irreparable & non-compensable loss to the
plaintiffs/ appellants.

That the Hon’ble Court, while passing the impugned order

has not considered the case of the appellants/ plaintiffs in its

right and proper perspective inasmuch as it has not taken

into account all what had been projected by parties before it.

The real point, upon an application for a temporary

injunction, is not how the question ought to be decided at

the hearing of the case, but whether there is a substantial

question to be investigated and whether matters should not

be preserved in status quo until
disposed of. The object of the injunction is to preserve the
4. Court below has not considered this

that question can be finally.

status quo, but the L

aspect.
That the settled position of law is that a prima facie case
ining a relief on

implies the probability of plaintiffs obt
material placed before the Ld. court. Every pi
ither party has to be taken into consideration

ece of evidence

produced by e
in deciding exis
ase, it is not necessary for a party to prove his
aised for

tence of a prima facie case. For establishing a
prima facie c
the hilt and if a fair question is r
it should be taken that a prima facie case is

ut the Ld. Trial Court has travelled beyond

case to

established, b
this principle.
That the Ld. Trial Court at the stage

application for temporary injunction, was not required to go
into the merits of the case. What the court was to examine is:
tiff has a prima facie case to go for trial; (ii) the
ecies of injuries known
established; and

f deciding an

(i) the plain
protection is necessary from that sp
as irreparable before his legal right can be

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(iii) that the mischief of inconvenience likely to arise from
withholding injunction will be greater than what is likely to

arise from granting it.

q) That the bedrock of whole controversy having landed before
the Ld. Trial Court was that the appellants are in permissive
& admitted actual physical possession of the suit shops and
are apprehending their forcible dispossession by the hands

of the defendants, causing thereby irreparable loss to the

appellants/ plaintiff and the appellants have approached the

Ld. Trial Court to protect & preserve their actual physical

possession over the suit shops.
r) That in the circumstances of present case, it is necessary to

event irreparable & serious injury which
particularly when the —

pr normally cannot
be compensated in terms of money,
balance of convenience is in favour of the
appellants/ plaintiffs seeking such relief. :
s) That maintaining status quo in civil suits is a critical
mechanism for protecting the interests of the parties
involved, particularly in proper
e such orders to prevent

ty disputes. Hor’ble Courts

have the authority to issu

irreparable harm and ensure that the subject
til a resolution is reached.

matter of the

dispute remains unchanged un
t) That a status quo order is a legal order issued by the
Hon’ble Court to prevent any of
dispute from taking any action

resolved. The order preserves the e

the parties involved in a
until the matter can be
xisting situation, so that
d or prejudiced until

no party’s position can be compromise:
ants have brought

the matter has been resolved. The appell
all the facts & consequences of the vacation of interim 6 -
protection to the Ld. Court below, but the Ld. Trial Court

has not considered & appreciated this aspect of the matter

Phi

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x)

y)

and has passed the impugned order in an arbitrary &
cursory manner.

That the present suit is properly valued aig the requisite
court fee is annexed with the memo of appeal

That this Hon’ble Court being appellate ‘authority has
powers and competence to entertain & decide the present
appeal.

That the appellants seek leave of this Hon’ble Court to raise

more grounds at the stage of arguments of this case vis-a-vis

the facts and law which have not been specifically pleaded

in this appeal.

That the appellants have no other alternate and efficacious

remedy available against the respondents except to invoke .
the jurisdiction of this Hon'ble court for redressal of their

genuine grievances.
That an affidavit duly sworn in by one of the appell
support of the present appeal is enclosed herewith.

ant in

IN THE PREMISES, it is, therefore, prayed that this
Hon'ble Court may be pleased enough to allow the instant
appeal and the impugned order dated 19-06-2025,passed by
Ld. court of Civil Judge Senior Division/Sub Judge
Kupwara in the interim application arising out of the Civil

original suit titled M/s Brothers Steel and Cement and Ors
Vs Gh. Hassan Mir and Anr”, may kindly be set aside, as
the same shall be in consonance of law, equity ¢ and justice.

The Hon'ble may be pleased to pass such further order
as may deems fit and proper in the attending facts and

circumstances of the case.
Appellants
through counsel
M/S Aijaz Athar (Advocate) & Associates

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Place: Kupwara
Date: 07.07.2025

Verification:

1, Khurshid Ahmad Bhat (Aged 46 years)S/ dl abdul Khaliq
BhatR/o Lankreshan, Vilgam District Kupwara, do, hereby verify
and declare that the averments averred in the appeal are true&
correct to the best of my personal knowledge& belief and I, have

fully understood the same. :
~ APPELLANT

aR!

ite

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