Injunctions and Stay Orders should not be Granted Mechanically without Realising the Harm likely to be Caused to Opposite Party [ORDER]

Injunctions and stay orders should not be granted mechanically without realising the harm likely to be caused to opposite party.

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

Coram: Hon’ble Mr Justice Tashi Rabstan, Judge

OWP no.1343/2018 MP no.01/2018 Date of order: 03.08.2018

Ghulam Mohammad Wani and another v. Ali Mohammad Ganaie and others

Appearing Counsel: For Petitioner(s): Mr Shahwar Gauhar, Advocate; For Respondent(s): Mr Altaf Haqani, Advocate for respondent/caveator

O R D E R

1. Instant writ petition has been filed under Section 104 of the Constitution of Jammu and Kashmir. Petitioners, on the edifice of case set up, seek quashment of order dated 12th March 2018 passed by learned Munsiff Chadoora as also order dated 16th July 2018 passed by learned Principal District Judge, Budgam in Civil Miscellaneous Appeal bearing File no.93/Appeal. Petitioners implore a direction in the name of parties to maintain status quo with respect to the suit property, with further direction to Trial Court to pass decree against defendants/respondents 2&3 and in favour of plaintiffs in view of admission made by them in their written statement filed before learned Trial Court.

2. The case set up by petitioner is that they have filed a civil suit titled Ghulam Mohammad Wani and another v. Ali Mohammad Ganie and others, before the court of learned Munsiff, Chadoora (for brevity “Trial Court”) for grant of Decree for Declaration, Partition, Possession and Permanent Injunction. Learned Trial Court vide order dated 13th December 2017, directed parties to maintain status quo with regard to suit property. Learned Trial Court, however, by order dated 12th March 2018, dismissed interim application and vacated status quo order dated 13th December 2017. Dissatisfied therewith, petitioners preferred a Civil Miscellaneous Appeal before the court of learned Principal District Judge, Budgam (for short “Appellate Court”), which, however, has been vide order dated 16th July 2018 dismissed. It is this order of which petitioners are aggrieved, forcing them to knock at portals of this Court with writ petition on hand.

3. I have heard learned counsel for the parties and considered the matter.

4. Learned counsel for petitioners has stated that learned Trial Court has overlooked the admission made by respondents 2&3 in their written statement. He states that even if petitioners were not in possession of any suit property and so-called mutation was only in the name of respondents, but in light of admission by majority of contesting respondents/defendants that petitioners are co-sharers and liable to be having share out of landed estate in question, learned Trial Court was to protect interests of petitioners till final disposal of suit. Since there were much apprehensions that respondents may change the nature of suit property, which prompted plaintiffs/petitioners to seek protection of their rights by way of ad interim relief, however, by virtue of impugned order dated 12th March 2018, learned Trial Court dismissed interim application and vacated status quo orders, which has caused prejudice to rights and interests of petitioners. He also avers that law on subject is very clear that mutation does not confer any ownership rights.

5. Per contra, learned counsel for respondents has insisted that learned Trial Court has rightly exercised its jurisdiction to refuse to grant interim injunction for the reason that petitioners have failed to make out a prima facie case and other two requirements of law for grant of temporary injunction have not been made out in favour of petitioners. He also insists that mutation of inheritance was attested way back in the year 1960 and since then respondents continue to be in possession of the property as its lawful owners and respondent no.2 has already sold his share to strangers. Some portions of land has already been sold by respondent no.1 and rest of properties are in his exclusive possession. Learned counsel also avers that petitioners have taken too long time to assert their right; as a sequel whereof doctrine of acquiescence would apply to the case of petitioners. He submits that writ petition is without any merit and is liable to be dismissed in limine.

6. Glance of impugned orders reveals that the case of petitioners before learned Trial Court as well as before Appellate Court was that Sultan Ganie was owner of landed estate situated at Dharmbugh Tehsil B.K.Pora, who passed away some 60 years back, leaving behind mother, namely, Mst Azi (mother of petitioners) and respondents as his legal heirs. Petitioners’ mother has died some 40 years back, leaving behind petitioners as successors-in-interest. Estate left behind by her, has been in possession of respondents 1 to 3, who are stated to have promised mother of petitioners to give her due share in the suit property whenever it would be partitioned. However, the suit land is said to have been never partitioned during life time of petitioners’ mother. The orders impugned also divulge that respondent no.1 has sold 01 Kanal & 02 Marlas of land to father of petitioners.

7. On the other hand, case of respondents before both the courts was that properties belonging to Sultan have been inherited by respondents 1&2 and mutation of inheritance was attested in their favour in the year 1960, i.e. more than 57 years before and since then respondents have been in possession of suit land. Some portions of land has been sold by respondent. Respondent no.2 is stated to have almost sold his share from suit land. So has been done by respondent no.3. According to respondents, petitioners have been all along aware of the fact that the estate has devolved upon respondents 1 to 3 and they are owners in possession of suit land.

8. When civil suit was filed by petitioners, learned Trial Court passed interim order dated 13.12.2017, directing parties to maintain status quo with regard to suit land mentioned in the plaint. After considering the interim application on merits, learned Trial Court in terms of impugned order dated 12th March 2018, dismissed interim application. Learned Trial Court, while deciding interim application of petitioners, discussed three cardinal principles mandatory for grant of ad interim relief under and in terms of Order XXXIX Rule 3 of the Code of Civil Procedure, viz. prima facie case; balance of convenience and irreparable loss. After elaborate discussion, learned Trial Court observed that plaintiffs/petitioners have failed to establish prima facie case in their favour and as a sequel thereto, dismissed ad interim injunction application vide order dated 12th March 2018.

9. Insofar as impugned order dated 16th July 2018 is concerned, learned Appellate Court has discussed all facets of the matter concerning granting of and/or not granting of ad interim injunction. In that view of matter, writ petition on hand lacks in merit and is liable to be dismissed. Nonetheless, above discourse apart, a lot needs to be discussed herein after qua grant or refusal of ad interim injunction.

10. An injunction is a judicial remedy prohibiting persons from doing a specified act called a restrictive injunction, or commanding them to undo some wrong or injury called a mandatory injunction, and may be either temporary, interim or interlocutory, or permanent. Order 39 of the Code of Civil Procedure deals with temporary, interim or interlocutory injunction and orders. Where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, or that the defendant threatens to dispossess the plaintiff or otherwise cause injury to plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of plaintiff, or otherwise causing injury to the plaintiff in relation to the property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders. Injunctions are of two kinds, temporary or perpetual. Temporary injunctions are regulated by Rules 1 and 2 of Order 39 CPC, whereas perpetual injunctions are regulated by the Specific Relief Act. A party against whom a perpetual injunction is granted is thereby restrained for ever from doing the act complained of. A perpetual injunction can only be granted by a final decree made at the hearing and upon the merits of a suit. A temporary or interim injunction, on the other hand, may be granted on an interlocutory application at any stage of a suit. The injunction is called temporary, for it endures only until the suit is disposed of or until the further orders of the court. Injunction being in the nature of preventive relief, is generally granted taking note of the equity. However, the court has no jurisdiction to grant by way of interim relief what could never be granted in the main suit itself. Both the parties, plaintiff as well as defendant, can approach the court beseeching vouchsafe of temporary injunctions and an order granting temporary injunction, i.e. a stay order preserves the rights of the parties for the period it remains in operation, but it does not confer any right which it does not recognise. In interlocutory proceedings, the court can express only its tentative view, which does not cause any prejudice to concerned party. [Vide: Prem Chand v. Manak Chand AIR 1997 Raj 198; Sathyabhama Ammo v. Vijaya Amma AIR 1995 Ker. 74; Ashok Kumar Aseri v. University of Jodhpur AIR 1995 Raj 33 (DB)].

11. Grant or refusal of interim injunction determines the fate of a suit. Due care and caution has, therefore, to be bestowed by court while granting or refusing an injunction. Measures should be taken by the court to ensure even-handed justice to both parties. Expanding it view on the issue, it was opined by Dr Dalveer Bhandari, J., speaking for the Court, in Maria Maargarida Sequeira Fernandes v. Erasmo Jack de Sequeira (2012) 5 SCC 370, that “Experience has shown that all kinds of pleadings are introduced and even false and fabricated documents are filed in civil cases because there is an inherent profit in continuation of possession. In a large number of cases, honest litigants suffer and dishonest litigants get undue benefit by grant or refusal of an injunction because the courts do not critically examine pleadings and documents on record. In case while granting or refusing injunction, the court properly considers pleadings and documents and takes the pragmatic view and grants appropriate mesne profit, then the inherent interest to continue frivolous litigation by unscrupulous litigants would be reduced to a large extent.”

12. In the words of White CJ: “The granting of a temporary injunction under the powers conferred by this (rule) is a matter of discretion. True it is a matter of judicial discretion. But if the court which grants the injunction rightly appreciate the facts and applies to those facts the true principles, then that is a sound exercise of judicial discretion.” [See: Subba v. Haji Badsha (1903) ILR 26 Mad 168, 174 White CJ per]. One of those principles is that the court in granting a temporary injunction must first see that there is a bona fide contention between the parties, and then, on which side, int ehe vent of success, will lie the balance of inconvenience if the injunction does not issue. Or, as stated in the judgment of Cotton LJ in Preston v. Luck (1887) 27 CD 497, 506, to entitle a plaintiff to an interlocutory injunction, the court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is a probability that the plaintiff is entitled to relief. The real point, upon an application for a temporary injunction, I 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 that question can be finally disposed of. The object of the injunction is to preserve the status quo. In issuing a temporary injunction, the tests to be applied are:

(i) Whether the plaintiff has a prima facie case;

(ii) Whether the balance of convenience is in favour of the plaintiff; and

(iii) Whether the plaintiff would suffer an irreparable loss if his prayer for temporary injunction is disallowed.

13. The phrases ‘prima facie case’, ‘balance of convenience’, and ‘irreparable loss’, are words of width and elasticity to meet myriad situations presented by man’s ingenuity in given facts and circumstances but they must always be hedged with a sound exercise of judicial discretion to meet the ends of justice. A prima facie case implies the probability of the plaintiff obtaining a relief on the material placed before the court. Every piece of evidence produced by either party has to be taken into consideration in deciding the existence of a prima facie case. For establishing a prima facie case, it is not necessary for the party to prove his case to the hilt and if a fair question is raised for determination, it should be taken that a prima facie case is established. The plaintiff must also establish the balance of convenience in the event of withholding the relief of temporary injunction will, in all events exceed that of the defendant in case he is restrained. The plaintiff must also show a clear necessity for affording protection to his alleged right which would otherwise be seriously injured or impaired. The principle of balance of convenience implies the evenly balancing of scales. The term ‘irreparable injury’ means injury which is substantial and could never be adequately remedied or atoned for by damages, injury which cannot possibly be repaired. It implies a substantial and continuous injury for which there does not exist any standard for ascertaining the actual damage likely to be caused. It is most apposite to mention here that irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, that cannot be adequately remedied or compensated by way of damages. [Vide: Subodli Gopal Bose v. Province of Bihar AIR 1950 Pat 222; Raju Maheshwar Dayal Sseth v. Yuvraj Dutta Singh AIR 1946 Oudh 42; Doherty v. Allman (1878) 3 App Cas 709; Subba v. Haji Badsha (1903) ILR 26 Mad 168, 175; Firm Ram Kishun Shah Itwari Sahu v. Jamuna Prasad AIR 1951 Pat 469; Israil v. Shamser (1914) ILR 41 Cal 436, 442-43, 21 IC 861; Nanabhai v. Janardhan (1888) ILR 12 Boim 110; Hemanta v. Baranagore (1914) 19 CWN 442, 24 IC 313; Civil Station Sub-Committee, Nagpur v. Govindrao 1937 ILR Nag 33, 170 (C 239, AIR 1937 Nag 137; LD Meston Society v. Kashi Nath Misra AIR 1951 All 558; Sitaram Banwari Lal AIR 1972 Cal 105].

14. At the stage of deciding the application for temporary injunction, the court is not required to go into the merits of the case. What the court has to examine is: (i) the plaintiff has a prima facie case to go for trial; (ii) the protection is necessary from that species of injuries known as irreparable before his legal right can be established; and (iii) that the mischief of inconvenience likely to arise from withholding injunction will be greater than what is likely to arise from granting it. Where no violation of the rights of the plaintiff is involved, the interim injunction should not be granted. [See: Dalpat Kumar v. Prahlad Singh AIR 1993 SC 276; Shiv Shanker Goyal v. Municipal Council, Ajmer AIR 1997 Raj 176; Sanjay Tandon v. Sarabjit Singh AIR 1997 Del 380 (DB)(; Gadadhar Mishra v. Biraja Devi AIR 1999 Ori 226; Graftek Pvt. Ltd v. Shri Lord Lingaraj Mahaprabhu AIR 1999 Ori 49; Kirloskar Diesel Recon Pvt Ltd v. Kirloskar Proprietory Ltd AIR 1996 Bom 149; Multichannel India Ltd v. Kavitalaya Productions Pvt Ltd AIR 1999 Mad 59; Sanjeev Kumar & Co v. Bishnu Prasad AIR 1999 Ori 90; CJ International Hotels Ltd v NDMC AIR 2001 Del 435].

15. In a case of Zenit Mataplast P. Ltd v. State of Maharashtra (2009) 10 SCC 388, the Supreme Court has held that an interim injunction should be granted by the court after considering all the pros and cons of a case. The order can be passed on settled principles taking into account the three basic grounds, i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the court can be good ground for refusal to grant interim relief.

16. This Court in Masood Ahmad v. Arif Ahmad Shah 2012 (4) JKJ 231 [J&K], has held that grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequence, depending upon the nature thereof. The courts, dealing with such matters, must make all endeavours to protect the interest of the parties. For the said purpose application of mind on the part of the courts is imperative. Contentions raised by the parties must be determined objectively. This Court also said that the relief claimed, if they succeed in the suit, can be measured by money and the plaintiffs can be compensated in terms of money. In terms of mandate of Specific Relief Act read with mandate of Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, when amount is ascertained and can be calculated, no ad interim relief can be granted. This is so for the simple reason that if tomorrow the plaintiff succeeds in the suit, he can be properly compensated by directing defendants concerned to pay the amount of compensation.

17. Injunctions and stay orders should not be granted mechanically without realising the harm likely to be caused to opposite party. It is only when a claim is made in the suit which, if established, would entitle the plaintiff to relief by way of injunction, that interim relief could be granted by way of temporary injunction, so that a relief in the suit might not be rendered infructuous. Accordingly, if no such relief is claimed, no interim injunction could be granted. An injunction will not be granted where the plaintiff has a remedy by way of damages. The injury must be irreparable and it must be continuous. It is well settled law that while passing ad interim injunction, the Court is to keep in mind the guiding principles viz. prima facie case, balance of convenience and irreparable loss. The Courts have to consider grant of interim relief at an interlocutory stage when the existence of legal rights assailed by plaintiff and its alleged violation are both contested and remain uncertain till they are established at trial. While considering grant of interim injunction to mitigate risk of injustice, the Court has also to weigh the corresponding need of defendant to be protected, against injury resulting from his having been prevented from exercising his own legal rights, for which he could not be adequately compensated. The balance of convenience has to be evaluated on said touchstone. Irreparable loss is another condition for grant of interim injunction and constitutes third important principle. It means that irreparable injury likely to occur as a result of withholding of injunction must be such that it cannot be adequately compensated by way of damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. Same is true about the present case. The court must weigh one need against another and determine whether the balance of convenience lies. Reference in this regard is made to DDA v. Skipper Construction Co (Pvt) Ltd AIR 1996 SC 2005; Abbobucker v. Kunhamoo 1958 ILR Mad 720; Kittamma v. Subba Rai AIR 1959 Mys 75.

18. It is worthwhile to mention here that an order of injunction is discretionary order and once the Trial Court exercises a discretion and grants or refuses to grant interim injunction, the same will not be normally interfered with by the Appellate Court, muchless by this Court under Section 104 of the J&K Constitution, unless it is found that such a discretion has been exercised arbitrarily or capriciously or perversely, or where the court ignored settled principles of law regarding the grant or refusal of interim injunction. This has been repeatedly pointed out by the Supreme Court in Ramdev Food Products (P) Ltd v. Arvindbhai Rambhari Patel and others 2006 (8) SCC 726; Wander Ltd v. Antox India (P) Ltd., 1990 (Supp.) SCC 727; Laxmikand V. Patel v. Chetanbhai Shah 2002 (3) SCC 65; and Seema Arshad Zaheer v. Municipal Corpn. of Greater Mumbai 2006 (5) SCC 282.

19. Based on the foregoing discussion, I do not see any reason to interfere with the discretion exercised by learned Trial Court while refusing to grant an injunction in favour of petitioners or to interfere with the order passed by learned Appellate Court.

20. In view of the above, writ petition sans any merit and is, accordingly, dismissed with connected MP.