Harnam Dass vs Krishan Lal

Mr. Janak Raj Kotwal, J. - Petitioner (defendant) has filed this petition under Section 104 of the Constitution of Jammu and Kashmir read with

Article 227 of the Constitution of India to assail judgment dated 03.09.2014 rendered by learned 1st Additional District Judge, Jammu (appellate

court) whereby order dated 06.08.2014 rendered by learned 3rd Civil Subordinate Judge, Jammu (trial court) in an application for temporary

injunction in a suit filed by the respondents (plaintiffs) has been set aside.

I have heard learned counsel for the parties and perused the record including that on the files of the lower courts.

Plaintiffs have filed a suit in the trial court for permanent prohibitory injunction restraining the defendant from interfering with, trespassing in or

otherwise disturbing peaceful possession of Plaintiff No. 1 qua land measuring 04 kanals and 10 marlas situate at Purana Pind, Tehsil, R.S. Pura

and a Shcller/Rice Mill, Plaintiff No. 2 constructed on that land. It is contended that 02 kanals of the suit land comprised in Khasra Nos. 347 min,

(02 marlas), 348 min (15 marlas) and 355 min (01 kanal, 3 marlas) has been purchased by Plaintiff No. 1 from one Shamsher Singh by virtue of a

sale deed whereas remaining 02 kanals and 10 marlas of land has also been purchased from the said Shamsher Singh but no formal sale deed

about this land has been executed. The plaintiff also filed application for temporary injunction under Order 39, Rules 1 & 2 CPC.

The trial court vide its order dated 06.08.2014 refused to grant the temporary injunction and dismissed the application. The appellate court vide

its judgment dated 03.09.2014, however, allowed the appeal, set aside the order passed by the trial court and directed the defendant to maintain

status quo on spot with respect to the suit property also observing that the suit property has been found to be in possession of Plaintiff No. 1.

Learned appellate court also directed that Plaintiff No. 1 shall not transfer, dispose of in any manner or create any third party interest in the suit

property described in the agreement to sell dated 06.01.1998 during pendency of the suit.

Factual position arising from pleadings of the parties has been stated in sufficient detail by the learned appellate court in the impugned judgment.

To restate briefly, the suit property consists of land measuring 04 kanals 10 marlas along with the rice mill existing on the said land. Land

measuring-02 kanals comprised in Khasra Nos. 347 min, 348 min and 355 min was purchased by Plaintiff No. 1 from one Shamsher Singh by

virtue of a duly executed and registered sale deed. He claims to have purchased the remaining 2 kanals and 10 marlas of the suit land from the said

Shamsher too, however, without execution of any sale deed and claims to be in its possession. Plaintiff No. 1 agreed to sell the rice mill to the

defendant by virtue of an agreement to sell, which was executed on 06.01.1998. The said agreement to sell is not in dispute. The copy of the

agreement to sell has been produced by the plaintiffs along with the plaint. Perusal of the agreement to sell reveals that Plaintiff No. 1 agreed to sell

to the defendant the rice mill along with building, machinery and its license for a consideration of Rs. 27 lacs. Admittedly, as per the agreement 5

lac rupees were paid to Plaintiff No. 1 by the defendant as token money at the time of execution of the agreement to sell 5 lac rupees were to be

paid on or before 31.03.1998 and remaining 17 lac rupees were to be paid on the liquidation of the loan of the Corporation and the Bank and the

electricity charges of the concerned department by the Plaintiff No. 1. Thereafter, the sale deed was to be executed in favour of the defendant and

in case of failure, the Plaintiff No. 1 was under obligation to pay double of the amount received by him. Admittedly, the possession of the rice mill

was handed over to the defendant as per the terms and conditions of the agreement to sell. It is inter alia alleged by the plaintiffs that the defendant

could not pay the balance amount 17 lac rupees to the plaintiff and clandestinely started shifting the machinery to his other mill namely Asha Rice

Mills in March, 2002 but with the intervention of the people the matter was settled, the plaintiffs got the premises back and the defendant took the

Shelter machinery from the premises.

Defendant in his written statement has a mentioned inter alia that on payment 5 lac rupees by him on 04.02.1998 to Plaintiff No. 1, a fresh

agreement was executed and after the payment 10 lac rupees, the appellant had to get NOC from the financial institution and execute the sale deed

of the mill along with land measuring 4 kanals 10 marlas. Defendant has contended that the Plaintiff No. 1 could not obtain the NOC from the

Financial Institutions and did not execute the sale deed. lie has refused to have delivered the possession of the mill back to Plaintiff No. 1.

It is noticed that the contention of the Plaintiff No. 1 that in March, 2002, with the intervention of the people the matter was settled, the plaintiffs

got the premises back and the defendant took the Sheller machinery from the premises’ did not find favour of the learned trial court and

therefore, learned trial court took the view that plaintiffs do not have prima facie case much less a strong prima facie case in their favour. This was

the primary reason for dismissing the application for temporary injunction.

Learned appellate court, however, took the view that‘dispute whether the mill remained in the possession of respondent till date or it was taker

over by plaintiffs in March, 2002 can be decided only after the trial of the case and on the basis of the material available on the file, the trial court

did not give any finding about the said dispute as both the parties to the suit has also relying upon the electricity bill’. Having so observed

learned appellate court noticed that in the written statement more particularly in Para 11 defendant has admitted the possession of plaintiff over the

suit property and therefore, there was a prima facie case in their favour. This was the primary reason for accepting the appeal by the appellate

court and even saying that suit property is found in the possession of the appellant and granting temporary injunction directing the defendant to

maintain status quoonspot in the respect of the suit property.

Mr. K.S. Johal, learned Senior Counsel, appearing for the respondent (plaintiffs) supported the impugned judgment inasmuch as he vehemently

opposed the maintainability of this petition on the ground that no case for invoking the supervisory jurisdiction of this Court under Section 104 of

the State Constitution is made out. Mr. Johal would say that mere dissatisfaction of a party with a decision or order of the lower court is no ground

for invoking supervisory jurisdiction of the High Court. Learned counsel submitted that supervisory jurisdiction of the High Court cannot be

invoked for setting aside an order passed by the lower court. Learned counsel relied upon Shalini Shyam Shetty v. Rajinder Shankar Patil,

(2010) 8 SCC 329. Mr. Johal also relied upon a latest judgment of the Supreme Court in Radhey Shyam v. Chhabi Nath, dated 26.02.2015.

Mr. Sunil Sethi, learned Senior Counsel, appearing for the petitioner on the other hand argued that this Court has the power to set aside an

illegal order passed by a subordinate Court in exercise of supervisory jurisdiction under Section 104 of the State Constitution read with Article 227

of the Constitution of India. Mr. Sethi argued that learned appellate court has not applied the settled principles of law in determining the existence

of prima facie case in favour of Plaintiff No. 1 and accepting plaintiffs’ plea that, defendant delivered possession of the mill to Plaintiff No. 1 in

March, 2002 as there was no occasion for doing so after the defendant had already paid 10 lac rupees towards sale consideration to Plaintiff No.

Mr. Sethi argued further that if it is presumed that defendant delivered the possession back to Plaintiff No. 1 in March, 2002, in that case

plaintiffs should have explained the circumstances that prompted the defendant to interfere with the mill after more than a decade of having

voluntarily delivered the possession.

On merits, Mr. Johal, learned Senior Advocate argued and emphasized that learned appellate court having on analysis of the material

produced by the parties found that Plaintiff No. 1 was in possession of the mill, there is no scope for interfering with the view taken by the

appellate court in exercise of power under Article 227 of the Constitution.

It may be underlined that the impugned judgment dated 03.09.2014 is neither appealable nor revisable under Section 115 CPC. Petitioner has

therefore, invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India read with section 104 of the State

Constitution. In Shalini Shyam Shetty, Hon’ble Supreme Court has surveyed judicial pronouncements as to the nature of the power of

superintendence and control conferred on the High Court’s by the Constitution under Article 227 (Section 104 of the State Constitution). The

Supreme Court in this case has started with the Constitution Bench judgment of the Court in Waryam Singh v. Amarnath, AIR 1954 SC 215,

where the Court, while relying upon a Special Bench judgment delivered by Harries, C.J. in Dalmia Jain Airways Ltd. v. Sukumar

Mukherjee, AIR 1951 Cal. 193, has held that this power is ‘to be exercised most sparingly and only in appropriate cases in order to keep the

subordinate courts within the bounds of their authority and not for correcting mere errors’. Besides, the Supreme Court has referred to

Constitution Bench judgment of the same court in Nagendra Nath Bora v. Comm, of Hills Division Appeals, AIR 1958 SC 398, in which the

Court, whiling following Waryam Singh’s case, has pointed out that ‘High Court’s power of interference under Article 227 is no greater

than its power under Article 226 and the power of interference under Article 227 of the Constitution is limited to ensure that the tribunals function

within the limits of its authority’. Supreme court has also referred to another Constitution Bench Judgment in State of Gujarat v. Vakhat

Singhji Vajesinghji Vaghela, AIR 1968 SC 1481, in which the Court has opined that the supervisory power under Article 227 is ‘meant to

keep the subordinate tribunal within the limits of their authority and to ensure that they obey law’.

On the analysis of the aforesaid and other decisions, Supreme Court in Para 49 of the 1'eporting in Shalini Shyam Shetty, has formulated the

following principles for the exercise of High Court’s jurisdiction under Article 227 of the Constitution:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court

under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is

substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been

discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the

orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal

subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise

of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In

this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles

in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can

interfere in order only to keep the tribunals and courts subordinate to it, ""within the bounds of their authority"".

(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to

exercise the jurisdiction which is vested in them.

(g) Apart from the sit nations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a

patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the

basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than

the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court’s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic

structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a

constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure

Code (Amendment) Act, 1999 does not ana cannot cut down the ambit of High Court’s power under Article

At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court’s jurisdiction

of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercise suo moto.

(1) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article

is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery

of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure

that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in

the functioning of the tribunals and courts subordinate to the High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed

for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of

individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline

pointed out above.

(o) An improper and a frequent exercise of this power will be counter productive and will divest this extraordinary power of its strength and

vitality.

Judicial pronouncements as to the object and scope of the power of the High Courts under Article 227 of the Constitution (Section 104 of the

State Constitution) would leave little scope to interfere with the orders of the subordinate courts as a matter of routine. This power cannot be taken

as right of another appeal to the aggrieved part nor this power can be invoked to point out an error of law or fact in the order or decision of a

subordinate court. This power cannot be used to make out that the decision of the subordinate court could have been or must have been other than

what it was.

High Court in exercise of its power under Article 227 of the Constitution (Section 104 of the State Constitution) should interfere in order only

to keep the tribunals and courts subordinate to it, ‘within the bounds of their authority’. In order to ensure that law is followed by such

tribunals and courts in exercising jurisdiction, which is vested in them and by not declining to exercise the jurisdiction. Apart from the above, High

Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts

subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

In the judgment dated 26.02.2015 rendered by the Supreme Court in Radhey Shyam & Anr. v. Chhabi Nath & Ors., Civil Appeal

No. 2548 of 2009, Hon’ble Court has not laid down any principle other or more than those laid down in Shalini Shyam Shetty (supra) as far

as the scope of power of superintendence of the High Court’s under Section 227 of the Constitution is concerned. In this case the learned

three-Judge Bench of the Supreme Court was constituted to consider the correctness of the law laid down by a learned two-Judge Bench in

Surya Dev Rai v. Ram Chander Rai & Ors., 2003 (6) SCC 675. that an order of civil court was amenable to writ jurisdiction under Article

226 of the Constitution. Surya Dev Rai seems to be the one case in which Supreme Court has held that a writ of certiorari is maintainable against

the order of a civil court. The correctness of the ratio of that judgement was doubted by another learned two-Judge Bench in the Radhey Shyam

v. Chhabi Nath and a request to the Hon’ble Chief Justice for a reference to a larger Bench was made.

Learned three-Judge Bench in Radhey Shyam took up the question, whether the view taken in Surya Dev Rai that a writ lies under Article 226

of the Constitution against the order of the civil court, which has been doubted in the reference order, is the correct view and answered as follows:

(i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution;

(ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226.

Contrary view in Surya Dev Rai is overruled.

This petition as said above is directed against the judgment whereby the temporary injunction has been granted by the appellate court in appeal

by the plaintiffs against the refusal of temporary injunction by the trial court. Having heard learned counsel for the parties in backdrop of the scope

of the power of superintendence of this Court under Article 227 of the Constitution (Section 104 of the State Constitution) and respective stands

of the parties, question arises, whether a case for showing indulgence by this Court is made out or not, that is, whether learned appellate court has

correctly applied the law in granting temporary injunction in favour of the plaintiffs or the impugned judgment suffers from patent perversity, which

has caused a gross failure of justice.

It needs to be stated, though it goes without saying, that the three important factors involved in consideration of an application for grant of

temporary injunction in terms of Order 39, Rules 1 and 2 CPC are ‘prima facie case’, ‘irreparable loss’ and ‘balance of

convenience’. The party seeking relief primarily has to make out the existence of a prima facie case in his favour. To make out a prima facie

case in his favour the case projected by such a party must raise for adjudication and decision of the court a triable issue, that is, a question, which

to the satisfaction of the court is substantial and bona fide. If the party seeking relief fails to make out the existence of a prima facie case in his

favour temporary injunction cannot be granted and other two factors need not be considered. The existence of the prima facie case in favour of the

party by itself, however, is not sufficient to grant the temporary injunction as the court has further to be satisfied that by not granting the temporary

injunction irreparable loss would result to that party and balance of convenience is in favour of granting the injunction.

It is admitted ground of both the parties that Plaintiff No, 1 is the owner of the rice mill, namely, Darshan Rice and General Mills (Plaintiff No.

2) and that the Plaintiff No. 1 and the defendant executed an agreement to sell dated 06.01.1998 by virtue of which inter alia the Plaintiff No. 1

agreed to sell the rice mill to the defendant and also handed over its possession to him for a consideration of 27 lac rupees out of which 5 lac

rupees were paid by the defendant to Plaintiff No. 1 at the time of execution of the agreement, another 5 lacs were to be paid on or before

31.03.1998 and remaining 17 lacs were to be paid after Plaintiff No. 1 would have cleared outstanding dues of the financial institutions and

obtained the NOC when the sale deed was to be executed. Dispute, however, arose between the parties before the sale deed as agreed under the

agreement was executed.

It is important to note that suit filed by the plaintiffs is one for injunction and not the one relating to performance of the contract of sale entered

into between Plaintiff No. 1 and the defendant or payment of balance amount of sale consideration. Important aspects of the plaintiffs’ case

have been noticed. According to the plaintiffs the agreement to sell relates to the rice mill built on 2 kanals of land only comprised in Khasra Nos.

347 min, 348 min and 355 min that was purchased by him from one Shamsher Singh by virtue of a sale deed, whereas the remaining 2 kanals and

10 marlas of the suit land that was purchased by him from Shamsher Singh too, though without executing any formal sale deed, is not the part of

the said agreement. Plaintiffs’ case further is that Plaintiff No. 1 cleared the loan of the State Financial Corporation in the year 1998 and

obtained the NOC. The defendant did not make the payment of the balance amount of 17 lac rupees and clandestinely started shifting the

machinery of the mill to his other mill, namely, Asha Rice Mill. He exerted pressure on the defendant, and got back the possession of the mill from

the defendant in March, 2002 and since then the mill is in his continuous possession. It has been alleged by the plaintiffs in the plaint that now after

twelve years the defendant is staking his claim in the suit property and trying to trespass in and forcibly occupy the same.

The stand of the defendant on the other hand is that the mill has been constructed on four and a half kanals of land. He has contended that the

possession of the entire land along with the mill, machinery and license was handed over to him by Plaintiff No. 1 at the time of the execution of the

agreement to sell. He has denied that possession of 2 kanals and 10 marlas of the land was retained by Plaintiff No. 1. He has contended further

that Plaintiff No. 1 has received almost entire sale consideration from him but has failed to execute the sale deed as he could not obtain the NOC.

He has denied to have delivered the possession of the mill to the plaintiff in March, 2002 and has contended that he had been running the mill and

clearing the electricity bills up to the 1 August, 2013 when on the request of the residents of the vicinity he decided to stop the operation of the mill

as it was causing pollution in the area, shifted the machinery to his Asha Rice Mills and converted its premises as Godown for the Asha Rice Mills.

Defendant has alleged that under the garb of the ex parte ad interim injunction granted by the learned trial court in the suit filed by the plaintiffs the

Plaintiff No. 1 with the help of some goons broke open the locks and trespassed into the mill in the night intervening 10 and 11 February 2014. He

lodged report with the police on which proceedings under Section 145 Cr.P.C. have been lodged by the police, lie also filed an application under

Section 156 (3) Cr.P.C. before the Judicial Magistrate, R.S. Pura for registering FIR against the defendant but the learned Magistrate has sent the

same for inquire to the Dy. SP. R.S. Pura in terms of section 202 Cr.P.C.

The agreement to sell dated 06.01.1998 relates to sale of the Rice Mill. There is no mention in the agreement about area or boundaries of the

land comprised in the mill or in particular the sale of that portion of land, measuring 2 kanals and 10 marlas, which the Plaintiff No. 1 claims to have

purchased without any sale deed. No agreement to sell said to have been executed on 04.02.1998 has been produced before the court by the

defendant at any stage so far. It is, however, evident from the record of the trial court, as it has been noticed by the learned appellate court also

that the rice mill has been established by the Plaintiff No. 1 over that portion of the suit land measuring 02 kanals which was purchased by him by

virtue of a duly executed sale deed from Shamsher Singh. It is evident, as observed by the learned appellate court also, that there was no occasion

for the Plaintiff No. 1 to sell the other land measuring 02 kanals and 10 marlas through agreement to sell in favour of the respondent as he was not

the owner of the said land because it was not purchased by him from its erstwhile owner through a duly executed and registered sale deed.

Learned appellate court has recorded cogent reasons for taking the view that Plaintiff No. 1 had constructed the mill, that is, Darshan Rice and

General Mills (Plaintiff No. 2) on 02 kanals of land comprised in Khasra Nos. 347 min, 348 min and 355 min and there was no occasion for him

to sell his other land measuring 2 kanals and 10 marlas by virtue of the agreement to sell executed by him in favour of the defendant. I find no legal

ground for-differing, much less interfering, with the view taken by the appellate court in this regard and hold that no case for interference with the

impugned order insofar as it relates to the said 2 kanals and 10 marlas of land is made out.

In regard to the mill and the two kanals of land underneath and appurtenant thereto learned appellate court seems to have deviated from the

core issue for consideration and has taken a lopsided view of the statement contained in Paragraph 11 of the written statement filed by the

defendant in the trial court. As pointed out above, the suit filed by the plaintiffs is one for permanent prohibitory injunction restraining the defendant

from interfering with the possession of Plaintiff No. 1 of the suit property. Having admitted the execution of the agreement to sell dated 6.1.1998

and handing over of the possession of the mill to the defendant, the plea taken by the plaintiffs in Paragraph 9 of the plaint is that the defendant did

not pay the balance sale consideration of 17 lac rupees to Plaintiff No. 1 so the possession of the mill was handed over to Plaintiff No. 1 in March,

2002. The core issue involved in the suit therefore, is whether possession of the mill was delivered back by the defendant to Plaintiff No. 1 in

March, 2002. In seeking the relief of temporary injunction, the plaintiffs were required to make out a prima facie case in the same sense, that is, in

regard to handing over of the possession of the mill to Plaintiff No. 1 by the defendant in March, 2002.

Learned trial court took the view that plaintiffs do not have prima facie case much less a strong prima facie case in their favour observing inter

alia that if the defendant had peacefully delivered the possession of the suit premises to plaintiff in March, 2002, it is difficult to countenance as to

what impulse can motivate him to suddenly flex muscles to occupy the suit property after twelve years. Learned appellate court on the other hand

did not accord any consideration to the question as to whether the plea of the plaintiffs that possession of the mill was delivered back to Plaintiff

No. 1 by the defendant in March, 2002 has substance and was a bona fide plea. It; was expected of the learned judge of the appellate court to

accord consideration to the observation of the learned trial judge as to what impulse would have actuated the defendant to stake his claim to the

suit property or interfere with the possession of Plaintiff No. 1 if he had handed over its possession to the latter far back in the year 2002 and

express his opinion in this regard.

Learned appellate court instead treaded a wrong path by giving undue importance to the question as to whether the mill remained in possession

of the defendant ‘till date’ and taking the view that ‘dispute whether the mill remained in the possession of defendant till date or it was

taken over by Plaintiff No. 1 in March, 2002 can be decided only after the trial of the case and on the basis of the material available on the file.

Correct it may be that plaintiffs have raised a question for consideration of the trial court, whether the defendant delivered the possession of the mill

back to Plaintiff No. 1 in March. 2002 but every question raised by a party does not amount to the existence of a prima facie case in his favour for

the purpose of grant of the temporary injunction. What is required further is that the question so raised should be substantial and bona fide. It being

admitted that possession of the mill was handed over to the defendant at the time of execution of the sale deed in the year 1998 and it being not

disputed by the plaintiffs that 10 lac rupees towards the sale consideration were already paid to Plaintiff No. 1 by the defendant, the plea that the

defendant voluntarily handed over possession back to the plaintiff in the year 2002 and twelve years later again made an attempt to trespass into

and interfere with plaintiff’s possession of the mill cannot be given its face value and cannot constitute a prima facie case to grant temporary

injunction in favour of the plaintiffs.

A grave and patent, error of law and fact has been committed by the learned appellate court by taking the view that in Paragraph 11 of the

written statement the defendant has admitted the possession of the plaintiffs over the suit property’ and entering into a painstaking discussion to

virtually reject defendant’s plea that under the garb of ex parte ad interim injunction granted by the learned trial court in the suit filed by the

plaintiffs the Plaintiff No. 1 with the help of some goons broke open the locks and trespassed into the mill in the night intervening 10 and 11

February, 2014. The admission, if any, in Paragraph 11 of the written statement relates to the trespass made by the Plaintiff No. 1 after filing of the

suit by him and in no case to the possession of the mill as at the time of filing of the suit. The relevant time for existence of a prima facie case for the

purpose of grant of temporary injunction is the date of filing of the suit and not pursuant to an incident alleged to have occurred after filing of the

suit, which needs to be tackled differently and appropriate order may be passed by the trial court due to such a development, but not to be made

basis for granting or refusing the temporary injunction.

Viewed thus, I would hold that learned appellate court has not correctly applied the law in determining the existence of prima facie case in

favour of the plaintiff as at the time of filing of the suit and has caused gross and manifest failure of justice by granting temporary injunction in regard

to the possession of the suit mill against a person, who admittedly was put in possession of the said mill by the Plaintiff No. 1 by virtue of an

agreement to sell executed between them.

For all that said and discussed above, a case for showing indulgence has been made out and in the result, this petition is partially allowed and

the impugned judgment insofar as it relates to the suit mill and the land measuring 2 kanals comprised in Khasra Nos. 347 min, 348 min and 355

min is set aside. The judgment, however, is upheld to the extent remaining 2 kanals and 10 marlas of land.

Record of the courts below be remitted back along with a copy each of this judgment.