Jamsheed Ul Nisa vs Umer Iqbal Vaida

Learned Additional District Judge, Srinagar has declined grant of interim assistance in favour of the appellant herein in terms of the order passed on 28.04.2018 (for short impugned order) while making the observations as:-

"....The court is supposed to take a general view of the case and judge its apparent strength and weakness without offering any comment on the merits of the case. The court has to ensure whether three essential ingredients i.e. prima facie case, balance of convenience and irreparable loss exist or not. But before applicant proves before the court that she has a prima facie case and the balance of convenience and irreparable loss factors also exist, she has to prove before the court that she has raised a question which needs adjudication by the court. The applicant has to establish that she has a right which is being infringed by the acts of other-side. It is only when the right is proved, a duty is cast upon the court to come to the rescue of the applicant and restrain the other-side from infringing that legal right of the applicant. If no right vests in the applicant, there can be no question of its infraction and no duty can be cast upon the court to protect such right. The infringement of a legal right is sine-quo non for the grant of injunction. The applicant has to prove that she has a right which needs protection by this court and the interference of the court is necessary so as to restrain the other-side from infringing that right. If applicant fails to establish and prove that she has a right which needs protection by this court, the injunction cannot be granted. The applicant has failed to establish prima facie case needing adjudication by this court and has also failed to protect a right before this court which can be protected by this court. The applicant has failed to establish that she has raised a question which needs adjudication by this court, the balance of convenience does not appear to lie in her favour because apparently she has no right to claim possession or claim title over the suit property after having executed a sale deed in favour of the non-applicant, the sale deed has been dully registered before the court of law to which presumption of authenticity and genuineness is attached so consequently her claim that if no relief is granted in her favour then she shall suffer irreparable loss does not seem to be tenable..."

Learned Additional District Judge has discussed the pleadings of the parties and thereafter framed the tentative opinion referred above.

It had been pleaded in the suit filed on behalf of the appellant as:-

"That the defendant (respondent herein) has illegally and fraudulently executed the sale deed without any knowledge or consent of the plaintiff as he has immorally and illegally associated himself as the absolute owner of the property which still is not in his possession even after the execution of sale deed, so deserved to be set aside and quashed be declaring it as null and void.

That the defendant (respondent herein) had been found habitual of these misdeeds and acts in executing such type of documents and continued to be so, as in the instant case he asked for execution of a power of attorney for some requirements and necessities, with regard to which the plaintiff as a mother believed his son and voluntarily approached in the court premises and signed the document believing it as a document in the form of power of attorney, and volunteered herself for its execution and registration as well but was not in know of the fact that she would be deceived by her son by executing a sale deed in his favour, otherwise she would have received the consideration money as shown in the sale deed with regard to which defendant has to display the accounts and the mode of transaction and the way he has paid the consideration money to the plaintiff, as such plaintiff is within her rights to seek cancellation of the sale deed with regard to suit property and for restraining waste of the said property which is being acquired by the defendant by way of fraud and deception."

The contentions raised in terms of the instant memo of appeal to sound the judgment passed by the learned Additional District Judge, Srinagar on

28.04.2018 is bad are as:-

"...That the impugned order has been decided in hot haste and without application of mind while disputing the status of the appellant as the owner in possession of the suit land, without any reference to record and appealten statement of the respondent wherein the respondent has admitted the fact of paying the consideration value of the property in terms of gold, which is contrary to the execution and registration of the document, which is denied by the appellant as not at all received in any mode, as such loses its probative value and renders the document void, as was a triable issue and the court was required to adjudicate upon the matter to the effect of preserving the suit, which has been disagreed by the court and in this view of the matter the order under instant appeal is bad and likely to be set aside on this count alone. That the appellant has not parted with the suit land in question and has never vested unto the appellant even if the stand of the respondent can be deemed true and correct as per their appealten statement that it has been transferred to the respondent by the appellant while executing a sale deed and is also accredited and incorporated in the revenue records as well and without getting verified the status of the parties with regard to their title and possession upon the suit land impugned order has been passed on recording satisfaction on assumptions and presumptions as such order impugned is bad in law and void ab initio as such deserves to be set aside. "

Learned counsel appearing for the appellant has contended that the learned trial Judge was not within the powers to make observations on the merits of the controversy while deciding the application for grant of interim assistance. The observations made in the concluding part of the judgment dated 28.04.2018 that the appellant has no right to claim possession or title over the suit property after having executed a sale deed in favour of the respondent herein, was uncalled. Similarly, the observation appearing in the middle of the said judgment that the appellant had to prove, for maintaining the application for grant of interim assistance, the question raised by her which needs adjudication before the court, was also uncalled. Further arguments have been raised in the light of the averments taken in the memo of appeal to substantiate the same. He has relied on the below mentioned judgments to substantiate his arguments:-

(a) AIR 2005 SC 104, Maharwal Khewaji Trust (Regd.), Faridkot vs. Baldev Dass

(b)AIR 2005 SC 1444 Supp(I), Metro Marins & Anr. Vs. Bonus Watch Co. Pvt. Ltd.

(c) 2005 (Supp) JKJ 608(HC), Kunj Lal Vs. Union of India & ors.

(d) 2008(1) SLJ 314,Subash Chander Vs. Shri Mata Vaishno Devi Shrine Board

(e) 2006 SCCR 689, Anil Rishi vs. Gurbaksh Singh

(f) AIR 2009 SC 2122, Kaliaperumal Vs. Rajagopal & Anr.

(g) 2010 SCCR 770, Vinod Seth Vs. Devinder Bajaj & Anr.

(h) AIR 2011 SC 1492, H.Diddiqui Vs. A.Ramalingam.

(i) AIR(36) 1949 Madras 882,Yellapragada Gopankrishnamurthi Vs. Pettu Poda Madireddi & Ors.

(j) (2018) 12 SCC 309, Gunwantlal Godawat &Union of India & Anr.

On the other hand, learned counsel for the respondent submitted that the learned trial Judge properly appreciated the pleas taken by the parties. He has also referred to the averments contained in the plaint, written statement and the other documents brought on the record while arguing the case.

Mr. Qadri, learned counsel for the respondent, in order to substantiate his arguments referred to the following judgments:-

(a) 1972 Legal Eagle 56, Melur Co-operative Marketing Society vs. Salia Maniam & Ors.

(b) 2013 Legal Eagle 66, Mohd. Mehtab Khan & ors. Vs. Khushnuma Ibrahim & ors.

(c) 1971 AIR (SC) 1028, Rani Vs. Santa Bala Bebnath

(d) 2014 (3) JKJ 273, Nuzhat Jan Vs. State of J&K.

Further points raised by learned counsel are:-

The inference drawn by the learned trial court about the conduct of the appellant herein while weighing the relevance of grant of interim assistance was well placed. The appellant herein is a highly qualified gazetted officer and is not expected to plead that the document intended to be executed was Power of Attorney and not sale deed. He has also made mention of the earlier executed document either in her favour or in favour of some other persons, in terms of which rights of interests were acquired by parted away.

The statement tendered before the police by the appellant herein when the earlier suit was filed against her 2nd husband by respondent that the respondent herein is in possession of the property and her 2nd husband namely Ghulam Mohammad Sheikh having also been stated by the police to have calmly listened to the advice of the police and left after entering the premises.

The said house having also been stated to be mortgaged to the Bank and the loan has been procured by the respondent herein, and is making monthly remittance towards the loan. It is also being submitted that the respondent herein was paying monthly electricity bill for the premises in question.

Learned counsel for the appellant also contended that the appellant herein has submitted an application before the trial court, in terms of which certain interrogations were asked to be answered by him which he has not done so far. It is also his contention that the consideration for sale, which according to the respondent herein, was in the form of gold, however same could not be arranged because of prohibition in terms of the Gold Control Act on acquisition of gold beyond the prescribed limit. The plea emphatically raised is that the document in question was sham as the consideration in no case could be paid to the appellant herein and the amount specified in the deed as consideration was not within the paying capacity of the respondent herein.

Considered the rival arguments.

It needs to be underlined at the very prelude that the power to be exercised under Order 39 of CPC is discretionary in nature and the court before whom the lis is pending is to examine the respective contentions of the parties and see the necessity and desirability of the grant of interim assistance. None of the parties has an indefeasible right to interim assistance. The court is not bound to lend assistance even if main conditions for grant are satisfied. The party seeking injunction pending trial is bound to show that non issuance of relief may render his suit totally nugatory and infructuous.

It may need a mention herein that the learned Additional District Judge, Srinagar while examining the contentions raised by both the sides has framed the opinion that the grant of interim assistance would not be warranted as the appellant herein (mother of the respondent herein) is not an illiterate lady, who would not be able to differentiate between a document which was intended to be executed according to her and could not be a sale deed. She is stated to be a gazetted officer and as such, could have been in know of the ramifications of subscribing her hand to the execution of the document. Nonetheless, there are certain observations which the appellant herein contends ought not to have been made while recording tentative finding in the application, as same may prejudice the case of the appellant as put-forth to be examined at the trial, the said observation referred above on behalf of the appellant herein shall not be treated to be an expression of opinion on the main merits. It is clearly deducible from perusal of the impugned order that the approach adopted by the learned trial court in withholding the interim assistance was practicable in the circumstance of the case, and so the manner in which discretion has been exercised cannot be faulted with by this Court in exercise of powers as an appellate forum.

It may be proper herein to have in mind the observation of their lordships in "Wander Ltd. and another Vs. Antox India P.Ltd. 1990 Supp(1) SCC 727" regarding limitations and circumspection of appellate forum in interfering in exercise of discretion. Unless the appellant is able to show the subordinate court while granting or withholding injunction has acted unreasonably or capriciously or has ignored relevant facts interference cannot be made. No interference would be warranted in appeal if the appellate forum had considered the matter at trial, it would have come to different conclusion.

Exercise is discretion in a particular manner too cannot be said to be bad, if same was reasonably possible and practicable in given circumstances. The Hon'ble Supreme court in the above case has made the following observations:-

"14. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant of refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principal. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by he court below of the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."

Similar observations have been made in "Skyline Education Institute(India) P.Ltd. Vs. S.L.Vaswani 2010(42) PTC 217 (SC)", which reads as under:-

"22.The ratio of the above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prime facie case, balance of convenience, irreparable injury and equity."

For this, I do not find any ground for interference in terms of the instant appeal with the arrangement made by the learned trial court. The appeal is liable for dismissal, as such, is dismissed.