Injunction | If Party Fails To Establish Prima Facie Case, Court Not Required To Consider Balance Of Convenience, Irreparable Loss: J&K High Court

The Jammu and Kashmir and Ladakh High Court has recently reiterated that If a party fails to prove a prima facie case, the court cannot grant an injunction, even if the balance of convenience and irreparable loss and injury are in their favour.

The reiteration was made by Justice Rajnesh Oswal while hearing a plea in terms of which the petitioner had sought indulgence of the court under Article 227 of the Constitution of India, thereby challenging the order passed by the Principal District Judge, Samba whereby Civil Miscellaneous appeal titled, ‘Vijay Kumar and Anr. vs. Surinder Partap and Anr.’ was allowed and the order dated 24.11.2020 passed by the Additional Munsiff, Samba in an application under Order 39 Rule 1 & 2, read with section 151 CPC, was set aside.

In the instant case the petitioners claiming ownership of land, filed a suit for injunction against the respondents, alleging that respondent No. 3, as attorney holder of the other respondents, had agreed to sell the land to them. The trial court granted an interim order for maintaining the status quo.

As a consequence, respondent Nos. 1 & 2 filed their written statement before the trial court and denied the power of attorney and claimed possession of the land. The trial court accordingly modified the interim order to restrain the respondents from alienating or creating any further charge on the land and from dispossessing the petitioners.

This order of the trial court was appealed by respondent Nos. 1 & 2 and was set aside by the appellate court and it was this order of the Appellate court which was being impugned before the bench.

Challenging the order the petitioners submitted that the appellate court should have confined its decision to the questions raised in the pleadings and further that the appellate Court has not decided the appeal on the basis of three essential requirements for issuance of interim injunction i.e. prima facie case, balance of convenience and irreparable loss.

The appellate Court has decided the appeal all together on new grounds, which were never raised before the trial court and further that the appellate Court has not followed the three essential and settled principles of law for issuance of interim injunction while deciding the appeal, it was argued.

Adjudicating upon the matter Justice Oswal noted that the agreement to sell relied upon by the petitioners executed between them and respondent Nos. 1 & 2 through respondent No. 3, was an un-registered and insufficiently stamped instrument and the appellate Court while passing the impugned order had held that an unregistered agreement to sell cannot be used by the petitioners to protect their possession.

In order to elucidate on the matter Justice Oswal said that a document that is required to be registered under section 17 of the Registration

Act but is not registered, cannot affect the immoveable property that is the subject matter of that instrument. instrument. Thus when the petitioners had based their suit for injunction demonstrating their alleged possession in respect of suit land on the basis of unregistered and insufficiently stamped instrument, which under law does not affect such immovable property, the petitioners had no prima facie case in their favour, the bench underscored.

"Once the petitioners had no prima facie case in their favour, then there was no need to consider the existence of other two trinity principles i.e. Balance of convenience and irreparable loss", the bench maintained.

In view of the said legal position court opined that the appellate Court has not committed any jurisdictional error while accepting the appeal filed by respondent Nos. 1 & 2 and setting aside the order dated 24.11.2020 passed by Additional Munsiff, Jammu.

Accordingly the bench found the petition devoid of any merit and dismissed the same.

Case Title: Surinder Partap Singh and another Vs Vijay Kumar and Anr.

Citation: 2023 LiveLaw (JKL) 93

Counsel For Petitioner: Ms Monika Kohli

Counsel For Respondent: Mr Jagpaul Singh

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