Surjeet Singh vs Principal Woodland and Another

Mansoor Ahmad Mir, J.—By the medium of this revision petition, petitioner has challenged the order dated 31st October, 2006 passed by

1st Additional District Judge, Srinagar, in appeal titled as Principal Wood Land House School v. Surjeet Singh on the grounds taken in the petition,

for short impugned order.

Heard. Plaintiff-petitioner filed a suit before the learned Principal District Judge, Srinagar, for declaration and permanent injunction which came

to be transferred to the Court of 3rd Additional Munsiff, Srinagar.

Alongside the suit, plaintiff filed an application for ad-interim relief. Trial court granted the application and stayed the termination order dated

15th December, 2005 with a command to the respondents-defendants to conduct enquiry under rules.

Feeling aggrieved of the said order, defendants-respondents filed a Civil Miscellaneous Appeal which came to be allowed by 1st Additional

District Judge, Srinagar, vide impugned order.

The question involved in this appeal is whether order passed by appellant court is perverse and illegal and whether interference is required.

In order to determine this question, it is necessary to notice the facts of the case herein in nutshell.

Petitioner-plaintiff was appointed by the School Authorities-defendants/respondents in the year 1990. In the year 2005 State Board of School

Education set-up a centre No. 862 for examination of 10+2 in the defendant-school. Defendants asked the petitioner-plaintiff to assist the

Superintendent in the examination hall. On 4th November, 2005 plaintiff-petitioner came to be arrested by Vigilance Organization Kashmir on the

allegation that he had accepted bribe of Rs. 3000/- from one Irshad Ahmad whose daughter was also taking examination in the said centre for

facilitating the copying to her. He remained in custody up to 21st November, 2005. He came to be placed under suspension by defendants-

respondents and thereafter termination order was served upon him through post. He challenged the termination order by the medium of a civil suit

on the grounds that termination order was issued by an incompetent person in gross violation of Rule 9(1) of the Service Rules governing the

defendant School.

The question is whether the termination order could be stayed during the pendency of the suit, in the given circumstances of the case and would

it amount to granting the final relief?

The plaintiff has sought decree of declaration declaring the termination order null and void and for decree of injunction. In the application for

grant of interim relief he had sought staying of the termination order and allowing him to perform the duties.

Virtually, the relief sought in the miscellaneous application amounts to granting of final relief. Learned Counsel for petitioner argued that the

impugned termination order is bad in law and without jurisdiction and came to be passed by an incompetent person. Further argued that operation

of the termination order could be stayed because it came to be passed without jurisdiction.

Learned Counsel for respondents argued that no irreparable loss will be caused to the petitioner. If he succeeds in the suit he will be taken

back and be given all monetary and other benefits but interim relief cannot be granted at this stage because it amounts to decreeing the suit finally.

He further argued that the petitioner has indulged in such an act which is against the public interest and public policy and virtually affects the future

of the society.

The allegation against the plaintiff is that he has aided the student/examinee to go for copying and came to be arrested and released after more

than 15 days. Can, in the given circumstance relief prayed for be granted in his favour. The reply is in negative for the reasons that balance of

convenience is not in his favour and no irreparable loss will be caused to him because damages can be assessed by way of money and he can be

paid the salary and other benefits.

The relief sought is virtually a final relief and in the given circumstances, it cannot be granted at this stage.

Apex Court in case titled Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, deprecated

the practice of granting interim relief/order which amounts to granting principal relief sought in the main petition. It is profitable to reproduce para-5

of the judgment herein:

We repeat and deprecate the practice of granting interim order which practically give the principal relief sought in the petition for no better

reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of

other relevant considerations....

Divisional Bench of this Court in case titled State v. Mohammad Hussain, reported in 1997 SLJ 203 has held that interim relief should not be

granted which has the effect of granting the main relief and more so when it affects the public interest.

Apex Court in case titled Metro Marins v. Bonus Watch Co. Pvt. Ltd. reported in AIR 2005 SC 1444 has held as under:

Having considered the arguments of the learned Counsel for the parties and having perused the documents produced, we are satisfied that the

impugned order of the Appellate Court cannot be sustained either on facts or in law. As noticed by this Court in the case of Dorab Cawasji

Warden v. Coomi Sorab Warden (supra) has held that an interim mandatory injunction can be granted only in exceptional cases coming within the

exceptions noticed in the said judgment. In our opinion, the case of the respondent herein does not come under anyone of those exceptions and

even on facts it is not such a case which cals for the issuance of an interim mandatory injunction directing the possession being handed over to the

respondent. As observed by the learned single judge the issue whether the plaintiff is entitled for possession is yet to be decided in the trial court

and granting of any interim order directing handing over of a possession would only mean decreeing the suit even before trial. Once the possession

of the appellant either directly or through his agent (caretaker) is admitted then the fact that the appellant is not using the said property for

commercial purpose or not using the same for any beneficial purpose or the appellant has to pay huge amount by way of damages in the event of

the losing the case or the fact that the litigation between the parties is a luxury litigation are all facts which are irrelevant for changing the status quo

in regard to possession during the pendency of the suit.

Apex Court has also laid down the same principle in case titled as Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, .

Mr. Qureshi relied on a judgment of this Court delivered in CIA No. 41/2003 titled State of J & K v. Iffat Alam, date of decision 23.03.2005 in

support of his arguments and stated that interim relief can be granted even if it amounts to granting the final relief. In the given circumstances of the

case, the said judgment is not applicable to the instant case.

Keeping in view the ratio laid down by the Apex Court and this Court in the judgments referred hereinabove, I am of the considered view that

interim relief could not have been granted at this stage. The trial court-3rd Additional Munsiff, Srinagar, has fallen in error while passing the order

which rightly came to be set-aside by the first appellate court. The trial court has passed an illegal order and virtually has decreed the suit which is

not warranted under law. I deem it proper not to make further observations but to exercise restraint. However, Registry is directed to sent copy of

this order to learned Munsiff, for information.

In view of the above discussion, this petition merits to be dismissed Which is accordingly dismissed along with all connected CMP(s).