Jammu & Kashmir High Court
Harbans Lal vs Mohinder Lal And Others on 14 January, 2020
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CR 03/2020
CM 152/2020
CAV 5123/2019
Harbans Lal ...Petitioner
Through:- Mr. G.S.Thakur Advocate
v/s
Mohinder Lal and others ... Respondent(s)
Through:- Mr. Ajay Gupta Advocate.
Coram : HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
ORDER(ORAL)
CAV 5123/2019 Mr. Ajay Gupta, learned counsel appears for the caveators. Caveat stands discharged.
CR 03/2020 1 By filing this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 09.10.2019 passed by the learned Principal District Judge, Samba (hereinafter referred to as the 'Appellate Court') in File No. 20/Appeal whereby the order dated 31.03.2018 passed by the learned Munsiff Samba (hereinafter referred to as the 'trial Court') in an application under Order 39 Rule 1 & 2 CPC, directing the parties to maintain status quo on spot with respect to the suit property till the disposal of the main suit, has been reversed.
2CR 03/2020 3 The appellate court while setting aside the order of status quo has directed the parties not to alienate the suit property or create third party interest over the same till the disposal of the main suit. 4 The brieffacts that need a mention for the purpose of determining the controversy in hand reveal that the petitioner/plaintiff filed a suit for declaration to the effect that the suit land is un-partitioned and is jointly owned and possessed by the parties in equal shares and for permanent prohibitory injunction restraining the defendants from alienating, changing the nature or raising any type of construction thereon. Alongside the suit, the petitioner/plaintiff filed an application for grant of temporary injunction restraining the defendants from alienating, changing the nature or raising any type of construction over the suit land till the disposal of the main suit. 5 After hearing the parties, the learned trial Court allowed the application and directed the parties to maintain status quo on spot with respect to the suit property till the disposal of the main suit. 6 Being aggrieved by the order dated 31.03.2018, by which the trial Court had directed the parties to maintain status-quo in respect of the suit property,the respondents/defendants filed an appeal being File No.20/Appeal before the appellate Court. The appellateCourt, on the basis of the material available on record, arrived at a finding that the trial court had failed to consider that the suit land was in possession of the respondents/defendants and that the trial Court also did not consider the settled principles for grant of temporary injunction, i.e. i. Prima facie case; ii. Balance of Convenience; and iii. Irreparable injury.
7 The appellate Court vide impugned order held that the suit property is in possession of the defendants and, therefore, prima facie case lies in their 3 CR 03/2020 favour and not in favour of the petitioner/plaintiff. So far as question of balance of convenience and irreparable loss is concerned, the appellate Court opined that these too lie in favour of the defendants. The appellate Court further noted that the petitioner/plaintiff had not mentioned about the filing of earlier suit and its effect in the present suit.
8 Learned counsel for the petitioner/plaintiff submits that the plaintiff has a prima facie case. He further submits that the trial Court has appreciated all the three settled principles required for grant or refusal of temporary injunction and, therefore, the order of the trial Court is in consonance with the facts of the case and the law applicable. 9 On the other hand, learned counsel for the respondents/defendants submits that the trial Court has failed to consider the aforesaid three principles while passing the order of status quo.
10 Having heard learned counsel for the petitioner and perused the record, I am of the view that the order impugned, which is a discretionary order passed by the appellate Court, does not call for any interference in the exercise of power of superintendence vested in this Court under Article 227 of the Constitution.
11 It is well settled that injunction is an interim discretionary relief granted pending adjudication of the suit. Discretion has to be exercised keeping in mind the principles governing grant of injunction. Appellate Court would not normally interfere with the exercise of discretion if the conclusion reached by the trial Court is based on the material on record. However, in the present case, the appellate Court on a careful consideration of the material on record came to a definite conclusion that the defendants 4 CR 03/2020 were in possession of the suit property and, therefore, cannot be deprived of its use and, accordingly, set aside the order of the trial Court. It is not the case that the appellate Court acted either illegally or with material irregularity in dismissing the plaintiff's application for temporary injunction.That being so, the High Court could not have invoked its jurisdiction under Section 115 of the CPC.
12 It is also well settled that unless the appellate Court is found to have exceeded its jurisdiction or it is found that it had acted illegally or with material irregularity in dismissing the plaintiff's application of temporary injunction, the High Court would not exercise its jurisdiction under Article 227 of the Constitution to reverse the order and substitute its discretion or views for the one exercised by the appellate Court.
13 It appears that the appellate Court has interfered with the injunction order passed by the trial Court on the ground that the trial Court had failed to consider the three principles for grant of injunction i.e. the existence of prima facie case, balance of convenience and the irreparable loss and injury in proper perspective.
14 From the perusal of impugned order, it is revealed that the appellate Court has reversed the order of the trial Court, directing the parties not to alienate the suit property in any manner which order very well preserve the suit property till the disposal of the main suit.
15 That apart, the petitioner/plaintiff as rightly observed by the appellate Court is, prima facie, guilty of suppression of material fact about the filing of earlier suit and its fate, in the present suit. A party seeking discretionary relief has to approach the Court with clean hands and it is required to 5 CR 03/2020 disclose all material facts which may one way or the other affect the decision. The suppression of material facts itself is a sufficient ground to decline the discretionary relief of injunction. Suppression of material facts from the Court itself is a ground for declining to exercise discretion and grant equitable relief of injunction.
16 For the reasons given above, this Court finds no merit in this petition and the same is, accordingly, dismissed.
(SANJEEV KUMAR) JUDGE Jammu 14.01.2020 Sanjeev Whether the order is speaking: Yes Whether the order is reportable: Yes/No SANJEEV KUMAR UPPAL 2020.01.20 11:17 I attest to the accuracy and integrity of this document