Supreme Court has made it clear that if the appellate court comes to the conclusion that the discretion exercised by the trial court in refusing to entertain the prayer for temporary injunction is vitiated by an error apparent or perversity and manifest injustice has been done, then interference in such circumstances would warrant. The aforesaid has been relied upon by the High Court of Jammu & Kashmir and Ladakh while deciding the case of Samitra Devi v. Shree Kumar Kotwal and others [ CM No. 8002/2021] which was decided upon by a single judge bench comprising Justice Tashi Rabstan on 3rd November 2021.
The facts of the case are as follows. It was contended in the appeal that the appellant filed a civil original suit for declaration with permanent prohibitory injunction to the effect that the appellant by virtue of document executed by her husband late Krishan Lal and his brothers namely Shree Kumar Kotwal and Om Kumar Kotwal way back in the year 1967 in favour of the appellant, is the absolute owner in continuous peaceful possession and occupation of land bearing Khasra No. 1456. It was contended that along with the main suit the appellant has also filed an application in terms of order 39 Rule 1 & 2 CPC which has been rejected by the Trial court after considering the written statement filed by defendant/respondent on the ground that the same is devoid of merit. It was contended that the case set up by the appellant before the Trial court is that the land is under the cultivating possession of the appellant since 1967 on the basis of the alleged document which is 50 years old and as per section 91 of the Evidence Act the document which is 30 years old need not to be proved and the presumption can be drawn in favour of the genuineness of the document.
The court perused the facts and arguments presented. it was of the opinion that “It is necessary to be seen that if the property in dispute is tried to be wasted, damaged, alienated, sold, disposed-off or there are chances of dispossessing the plaintiff from any property, which is in dispute in the suit and/or which may cause injury to the plaintiff concerning any property, which is in dispute in the suit, the Court may grant the temporary injunction. So, grant of temporary injunction is not to put an end to the litigation, but it is a beginning of the litigation and grant of the temporary injunction is aiming at preserving the property, which is in dispute in the suit because if the temporary injunction is refused to be granted, it would pave way for either of the parties before the Court to alienate, sell, dispose of and/or change the nature of the property, which is in dispute in the suit and in such situation the purpose of litigation would be futile and/or endless for both the parties. Thus, as can be professed from the Rule 1 of Order XXXIX, grant of temporary injunction is to prevent damage or wastage to „any property‟ which is in dispute in the suit.”
Judgment Reviewed by – Aryan Bajaj