The substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, excepting that the power of superintendence has been extended by this Article to tribunals as well, and also the same was held in the judgement passed by a single bench judge comprising HON’BLE SRI JUSTICE TASHI RABSTAN, in the matter Mohammad Yaqoob Lone and V. Hamidullah Lone and others, dealt with an issue mentioned above.
A civil suit i.e Annexure-II to the writ petition, titled Hamidullah Lone and others vs. Mohd. Yaqoob Lone and others have been filed by the respondents before the Trial Court, in which they state that the respondents and petitioner no.1 herein are the real brothers and are the owners in joint possession of the land measuring 47 Kanals and 17 Marlas. It is maintained by the respondents in their plaint that petitioner no.1 herein is issueless, without having a wife and was, therefore, residing with his brother, i.e., plaintiff no.3.
It is also contended by the respondents in their civil suit that in the year 2019, petitioner no.1 changed his residence from respondent no.3 to the house of his sister, namely, Mst. Zarafa W/o Nazir Ahmad and taking undue advantage of this position, Mst. Zarafa and her husband, during the lockdown in August 2019, managed two documents consecutively.
According to the plaintiffs/respondents, the suit land included the land mentioned in the documents also, is joint and unpartitioned as no legal partition of the suit land by metes and bounds have taken place in between the parties to date and in this way, the plaintiffs and defendant No.1 are the co-owners/co-sharers of the suit land under law, and also the defendants have started the preparations to raise the construction on the land in such a way which will not only oust the plaintiffs from the joint possession of suit land but also devalue the rest portion of the land falling under Survey No.209 as they are trying to raise the constructions on the best portion of the land.
It was also been mentioned by the defendants/petitioners in their written statement that in the year 2009, the plaintiffs and defendant no.1 had decided to partition the leftover property of their father, 7 CM(M) No.127/2021 CM No.5797/2021 Ramzan Lone, privately in metes and bounds with the consent of each shareholder, Objections to the interim applications had also been filed by the petitioners/defendants before the Trial Court.
Mr M. A. Qayoom, learned counsel appearing for the petitioners, has stated that merely because a party has a prima facie case, the temporary injunction cannot be granted by the court unless the party 12 CM(M) No.127/2021 CM No.5797/2021 seeking injunction satisfies the court as to the balance of convenience as well as irreparable loss and injury, being caused to the party.
Learned counsel for the petitioners also states that while considering the application for grant of injunction, the court has to consider the conduct of the parties and if the party has approached the court with unclean hands and has suppressed the material facts, it is not entitled to grant of injunction. He, in support of his contentions, has placed reliance on Jai Singh & Ors vs. Gurmej Singh, 2009 (15) SCC 747; Skyline Education Institute (Pvt.) Ltd. vs. S. L. Vaswani, AIR 13 CM(M) No.127/2021 CM No.5797/2021 2010 SC 3221;
The court perused the facts and argument’s presented, it believed that- “the High Court was not justified in permitting the respondent therein to change the nature of the property by putting up the construction as also by permitting the alienation of the property whatever may be the condition on which the same is done since in the event plaintiff‘s claim being found baseless, ultimately it was always open to the respondent to claim damages or inappropriate case, the court may itself award damages for the loss suffered. 19 CM(M) No.127/2021 CM No.5797/2021 If that being the position, the Appellate Court, in the present case, has been right to set aside the Trial Court order and grant interim injunction in favour of the plaintiff/respondent. 22. Because of the aforesaid analysis, the writ petition at hand lacks in merit and is, accordingly, dismissed with connected CM”.
Judgment Reviewed by; Mandira BS