Jammu & Kashmir High Court – Srinagar Bench
Ut Of J&K And Ors vs Asif Ali Malla on 10 February, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
S. No. 21
Regular Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM(M) No. 119/2021
UT of J&K and Ors. ...Appellant/Petitioner(s)
Through: Mr. Jahingeer Ahmad Dar, GA
Vs.
Asif Ali Malla ...Respondent(s)
Through: Mr. S. Arshad Andrabi, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT (ORAL)
10.02.2025
1. Quashing of Order dated 01.05.2021 passed by Principal District
Judge, Bandipora (Appellate Court), is sought in this petition.
2. Briefly stated facts giving rise to filing of this petition, projected by
petitioner – UT of J&K and others, are that respondent was engaged
as SPO in District SPO Cadre, Bandipora, on monthly consolidated
honorarium vide order No.730/2016 dated 10.12.2016. He performed
his duties till 28.07.2018. As respondent remained unauthorizedly
absent from his duty from 28.07.2018, at threshold his honorarium
was stopped and later on he was disengaged by order dated
20.12.2018.
3. Respondent filed a suit before Sub Judge, Bandipora (Trial Court) to
direct petitioners to allow him to continue in service as SPO and pay
him all emoluments. The Trial Court vide order dated 09.03.2020,
directed petitioners to allow respondent to continue as SPO in District
Bandipora on the post on which he was engaged till further orders and
subject to outcome of civil suit. Against this order, petitioners
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preferred an appeal. However, Appellate Court, vide order dated
01.05.2021, directed petitioners to implement the Trial Court order.
4. Aggrieved, petitioners challenge order of Appellate court on the
ground that order impugned has been passed without following the
law and procedure and the Appellate Court has exercised its
jurisdiction without application of mind; that the impugned order
clearly reflects that the same has been passed with malice with a view
to shower favour to the respondent.
5. Heard learned counsel for the parties and perused the material on
record.
6. Instant petition has been filed under Article 227 of the Constitution of
India. It relates to power of superintendence over all the Courts and
Tribunals throughout the territory by the High Courts. The nature of
superintendence is administrative as well as judicial. The power under
Article 227 of the Constitution of India is exercised to keep the
subordinate courts within the bounds of their authority, thus, this
power is to be used sparingly. The main grounds on which the High
Court interferes under Article 227 of the Constitution of India are:
when the inferior Courts act arbitrarily; when the inferior Courts act in
excess of the jurisdiction vested in them; when the inferior Courts fail
to exercise jurisdiction vested in them.
6.1. There is no bar on the High Court to itself examine the merits of the
case in exercise of its jurisdiction under Article 227 of the
Constitution if the circumstance so required. There is also no doubt
that High Court interfere with interim orders of the courts and
tribunals under Article 227 of the Constitution if the order is made
without jurisdiction. Thus, interference with interim orders passed by
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Trial Court is permissible if a case of perversity or error of jurisdictionis made out. The High Court cannot only set-aside the order but can
also pass appropriate orders which the Trial Court ought to have
passed in the given set of facts. Industrial Credit and Investment
Corpn. of India Ltd. v. Grapco Industries ltd. (1999) 4 SCC 710.
7. Now coming to the present case. Respondent was engaged as SPO in
District Bandipora vide order No.730 of 2016 dated 10.12.2016. He
was disengaged in terms of Order No.1610/ 2018 dated 20.12.2018 as
he remained unauthorizedly absent from duty w.e.f. 28.07.2018. He
filed a suit praying for grant of following reliefs:
a) Decree for declaration, declaring order of discharge of
plaintiff dated 13.12.2018 as null and void, ineffective and
inoperative against rights of plaintiff;
b) Decree for mandatory injunction, directing defendants to
produce order of discharge if any issued against him before
the court and defendants be further directed to allow plaintiff
to continue in service as SPO and to pay him all emoluments
which have been withheld till date by defendants and pay him
emoluments hereafter.
7.1. The suit has been filed by respondent before the Trial Court against
his disengagement order dated 13.12.2018, on 18.12.2019, that is,
after a gap of more than one year. In the main suit, he seeks setting-
aside of his disengagement order and allowing him to continue in
service as SPO and to pay him all emoluments which have been
withheld by the petitioners.
7.2. Alongside civil suit, respondent also moved an application for grant of
ad interim injunction. The Trial Court, without taking into account
the fact that respondent has been disengaged way back in November
2018, has directed petitioners to allow him as SPO in District
Bandipora, on the post he had been engaged.
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7.3. The Trial Court in impugned order has made a mention that a prima
facie case for grant of interim relief is made out by respondent and
balance of convenience tilts in his favour and that refusal of injunction
would involve greater injustice and if he is not allowed to perform his
duties he will suffer irreparable loss.
7.4. It is worthwhile to mention here, about third important cardinal
principle, viz. “irreparable loss”, the Trial Court had to see as to
whether who would as a consequence of passing of impugned order
be at receiving end and who would suffer irreparable loss.
8. Order XXXIX Rule 1 CPC provides that where in any suit it is proved
by affidavit or otherwise:
a) 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
b) that the defendant threatens, or intends, to remove or dispose of his
property with a view to defrauding his creditors, the Court may by
order grant a temporary injunction to restrain such act, or make
such other order for the purpose of staying and preventing the
wasting, damaging, alienation, sale, removal or disposition of the
property or dispossession of the plaintiff, or otherwise causing
injury to the plaintiff in relation to any property in dispute in the
suit as the Court thinks fit, until the disposal of the suit or until
further orders.
c) That the defendant threatens to dispossess the plaintiff or otherwise
causes injury to the plaintiff in relation to any property in dispute
in the suit:
Provided that the Court before granting any injunction shall
invariably call upon the applicant to satisfy it by an affidavit or
otherwise that not suit of similar nature is pending in or has already
been decided by any court of competent jurisdiction.
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9. In the case in hand, the main/final relief to which plaintiff/respondent,
if he is able to establish and prove his case as projected by him in his
suit after full-fledged trial, is found entitled to, will be, at the most, his
continuation in the department. If respondent succeeds, appellant-
department can be directed to allow him to continue and pay him
remuneration/ honorarium. And if respondent fails, obviously, he will
not get continuation beyond the date of his disengagement.
9.1. However, the Trial Court has passed impugned interim order giving
plaintiff/respondent which can be given to him at the conclusion of
the proceedings that too if he is able to succeed in his suit.
9.2. Irony is that if plaintiff/respondent fails in the main suit, the amount
that he may receive in the shape of remuneration/honorarium, if he
continues in appellant-department on the basis of impugned order,
cannot be recovered from him because of the simple reason that
plaintiff/respondent will, and/or which he can otherwise, make a
contention, which will be a strong contention, that he has worked in
appellant-department, so he is entitled to remuneration/ honorarium
for the work done period and as a consequence of which, the amount
received by respondent cannot be recovered from him and result
thereof would be that the ultimate sufferers will be appellant-
department and, as such, irreparable loss would be caused to
appellants, and not to respondent/plaintiff.
9.3. The Trial Court has ignored this important aspect of the matter that it
was required to look into the conduct of the party, the probable injury
to either party and whether plaintiff could be adequately compensated
if injunction is refused to him. It is reiterated here that if
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CM(M) No. 119/2021
plaintiff/respondent succeeds in his plaint, he can be sufficiently
compensated.
10.Satisfaction that there is a prima facie case by itself is not sufficient to
grant ad interim injunction; the court further has to satisfy that non-
granting of temporary injunction by it would result in irreparable
injury to the party seeking relief and that there is no other remedy
available to the party except one to grant temporary injunction and he
needs protection from the consequences of apprehended injury.
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 material one, namely, one that cannot be adequately
compensated by way of damages.
10.1. It is well settled that before granting injunction and considering prayer
for discretionary relief, the court must be satisfied that the party
praying for relief has a prima facie case and balance of convenience is
also in its favour. While granting injunction, if any, the court is also
required to ascertain whether refusal to grant injunction would cause
irreparable loss to such party. Apart from aforesaid well-established
parameters/ingredients, conduct of a party seeking injunction is also
of utmost importance. Reliance in this regard is placed on judgment
rendered by the Supreme Court in case M/s Gujarat Bottling Co. Ltd.
And others v. The Coca Cola Co. and others, AIR 1995 SC 2372.
10.2. Where both sides are exposed to irreparable injury, ending trial, the
courts have to strike a just balance, the court considering an
application for injunction has four factors to consider: first, whether
plaintiff would suffer irreparable harm if injunction is denied;
secondly, whether this harm outweighs any irreparable harm that
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defendant would suffer from an injunction; thirdly, the parties relative
prospects of success on the merits; fourthly, any public interest
involved in the decision. The central objective of interlocutory
injunctions should, therefore, be seen as reducing the risk that rights
will be irreparably harmed during inevitable delay of litigation.
10.3. If a party seeking injunction fails to make out any of the three
ingredients, it would not be entitled to injunction. Three cardinal
ingredients, “prima facie case”, “balance of convenience” and
“irreparable loss”, have been beautifully interpreted/defined by the
Supreme Court in the case titled of Mahadeo Savlaram Shelke v. The
Puna Municipal Corpn., (1995) 3 SCC 33.
10.4. While relying upon its earlier judgment in Dalpat Kumar v. Prahlad
Singh, (1992) 1 SCC 719, it was held by the Supreme Court:
“…the phrases “prima facie case”, “balance of convenience”and
“irreparable loss” are not rhetoric phrases for incantation but
words of width and elasticity, intended to meet myriad situations
presented by men’s ingenuity in given facts and circumstances
and should always be hedged with sound exercise of judicial
discretion to meet the ends of justice. The court would be
circumspect before granting the injunction and look to the
conduct of the party, the probable injury to either party and
whether the plaintiff could be adequately compensated if
injunction is refused. The existence of prima facie right and
infraction of the enjoyment of his property or the right is a
condition for the grant of temporary injunction. Prima facie case
is not to be confused with prima facie title which has to be
established on evidence at the trial. Only prima facie case is a
substantial question raised, bona fide, which needs investigation
and a decision on merits. Satisfaction that there is a prima facie
case by itself is not sufficient to grant injunction. The court
further has to satisfy that non-interference by the court would
result in “irreparable injury” to the party seeking relief and that
there is no other remedy available to the party except one to grant
injunction and he needs protection from the consequences of
apprehended injury or dispossession. 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, namely one that cannot be adequately compensated
by way of damages. The balance of convenience must be in
favour of granting injunction. The court while granting or
refusing to grant injunction should exercise sound judicial
discretion to find the amount of substantial mischief or injury7
CM(M) No. 119/2021
which is likely to be caused to the parties if the injunction is
refused and compare it with that which is likely to be caused to
the other side if the injunction is granted. If on weighing
competing possibilities or probabilities of likelihood of injury
and if the court considers that pending the suit, the subject matter
should be maintained in status quo, an injunction would be
issued. The court has to exercise its sound judicial discretion in
granting or refusing the relief of ad interim injunction pending
the suit.”
10.5. A Bench of three Judges of the Supreme Court in Shiv Kumar
Chadha v. Municipal Corporation of Delhi, 1993 SCC (3) 161, held,
“a party is not entitled to an order of injunction as a matter of course.
Grant of injunction is within the discretion of the court and such
discretion is to be exercised in favour of the plaintiff only if it is
proved to the satisfaction of the court that unless the defendant is
restrained by an order of injunction, an irreparable loss or damage
will be caused to the plaintiff during the pendency of the suit. The
purpose of temporary injunction is, thus, to maintain the status quo.
The court grants such relief according to the legal principles – ex
debito justitiae. Before any such order is passed the court must be
satisfied that a strong prima facie case has been made out by the
plaintiff including on the question of maintainability of the suit and
the balance of convenience is in his favour and refusal of injunction
would cause irreparable injury to him. Further the court should be
always willing to extend its hand to protect a citizen who is being
wronged or is being deprived of a property without any authority in
law or without following the procedure which are fundamental and
vital in nature. But at the same time the judicial proceedings cannot
be used to protect or to perpetuate a wrong committed by a person
who approaches the court”.
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10.6. Thus, existence of three basic ingredients, i.e. prima facie case,
balance of convenience and irreparable loss or injury, is mandatory
for passing an order of injunction under Order XXXIX, Rules 1&2 of
the Code of Civil Procedure. It is also well settled by now that
aforesaid three ingredients are not only to exist but must coexist. In
this respect, reliance is placed upon Best Sellers Retail (India)
Private Ltd v. Aditya Birla Nuvo Ltd and others, (2012) 6 SCC 792,
in which it has been held by the Supreme Court that even where prima
facie case is in favour of the plaintiff, the court will refuse temporary
injunction if the injury suffered by the plaintiff on account of refusal
of temporary injunction was not irreparable.
10.7. Mere satisfaction that there is a prima facie case by itself is not
sufficient to grant injunction. The court further has to satisfy that non-
interference by it would result in “irreparable injury” to the party
seeking relief and that there is no other remedy available to the party
except one to grant injunction and he needs protection from the
consequences of apprehended injury. 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,
namely, one that cannot be adequately compensated by way of
damages. Since purpose of temporary injunction is to maintain status
quo, court, while granting such relief, should be satisfied that prima
facie case has been made out and balance of convenience is in favour
of the plaintiff and refusal of injunction would cause irreparable loss
and injury to him.
11.In the above backdrop, the Trial Court in the present case has not
discussed the third important cardinal principle for grant of ad interim
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relief, i.e., “irreparable loss”. A loss which cannot be repaired or
compensated at the end of the suit/petition is called irreparable loss.
The Trial Court has, by virtue of impugned order, in essence, given
main relief prayed in the main suit which, therefore, requires to be
interfered with.
12. It has been observed by the Supreme court in Guru Nanak Dev
University v. Parminder Kr. Bansal and another, AIR 1993 SC 2412
: (1993) 4 SCC 401, that loose, ill-conceived sympathy masquerades
as interlocutory justice exposing judicial discretion to the criticism of
degenerating into private benevolence decisions on matters relevant to
be taken into account at the interlocutory stage cannot be deferred or
decided later when serious complications might ensure from the
interim order itself.
13.It would not be appropriate, at this stage, to make any comment or
observation whether plaintiff/respondent is entitled to continue in
appellant-department beyond the date of his disengagement. It is a
matter of trial; better to be adjudicated upon and decided by the Trial
Court while finally deciding the main suit.
14.The order of Trial Court, although passed in interim application,
amounts to decreeing the main suit that too without there being any
trial and without the claim proved by plaintiff/respondent. The
Appellate court also committed same illegality in its order by
directing petitioners to implement the Trial court’s order and allow
respondent to continue as SPO in District Bandipora, on the post on
which he had been engaged.
14.1. In this regard, it is apposite to refer to observations made by the
Supreme Court in M.I.Builders (P) Ltd v. Radhey Shyam Sahu
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(1999) 6 SCC 464. It was observed that judicial discretion cannot be
guided by expediency. Courts are not free from statutory fetters.
Justice is to be rendered in accordance with law. Judges are not
entitled to exercise discretion wearing the robes of judicial discretion
and pass orders based solely on their personal predilections and
peculiar dispositions. Judicial discretion wherever it is required to be
exercised has to be in accordance with law and set legal principles.
14.2. The Trial Court in the instant case has passed order impugned in
disregard to statutory fetters. The Trial Court has overlooked the
settled legal position that justice is to be rendered in accordance with
law inasmuch as Trial Court was not entitled to exercise discretion
wearing the robes of judicial discretion and pass order impugned
based solely on penchants and unusual outlooks.
14.3. It is a general principle that interim relief cannot be granted if it would
have effect of granting final relief. Exception is a case where
withholding such relief would have effect of render petition
infructuous. The application must, in addition, show a strong prima
facie case, balance of convenience and irreparable injury. State of
Orissa v. Madan Gopal Rungta, AIR 1951 SC 12; Deoraj v. State of
Maharashtra (2004) 4 SCC 697.
14.4. The object of ad interim injunction is to protect plaintiff against injury
by violation of his right for which he could not be adequately
compensated in damages if the case 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.
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The court must weigh one need against another and determine where
the balance of convenience lies. Gujarat Bottling Co. Ltd. v. Coca
Cola Co (1995) 5 SCC 545.
14.5. In the context of above settled position, both the orders of Trial Court
as well as Appellate court warrant interference and are liable to be
quashed. Accordingly, both the orders are set-aside.
14.6. The Trial court shall proceed with the trial of the case and decide the
same in accordance with the provisions of law.
15. Disposed of.
16. Copy be sent down.
(VINOD CHATTERJI KOUL)
JUDGE
SRINAGAR
10.02.2025
Manzoor
Manzoor Ul Hassan Dar
I attest to the accuracy and
authenticity of this document
Srinagar
06.03.2025 16:34 12
CM(M) No. 119/2021
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