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Where Conditions Imposed Disposing off Interim Application are Sufficient No Further Interference is Warranted: High Court of Jammu & Kashmir and Ladakh at Jammu

Where the conditions imposed by a trial court while disposing off an interim application pertaining to construction over a land, are sufficient, no further interference is warranted, as held by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU, before Hon’ble Mr. Justice Puneet Gupta, in the matter of Nishant Koul vs. Romesh Chandra & Ors. [MA No. 19/2021], on 27.12.21.

The facts of the case were that the appellant through the medium of the present appeal sought setting aside of order dated 09.10.2021 passed by the learned Court of Principal District Judge, Reasi, whereby the prayer sought for by the appellant in the interim application filed in the suit was declined and the defendants were directed to file undertaking in the Court that if the plaintiff succeeds in the suit the defendants shall remove the construction or any development on the suit land at their own cost and further that the defendants shall not alienate the land till disposal of the suit. The appellant challenged the impugned order on the grounds that defendants’ claim on the land was invalid in the eyes of law, and therefore the Court was unjustified in allowing construction over the land. Given that the parties’ rights can only be determined through trial, the appellants claimed that the real controversy between the party was not taken into account. It was also claimed that if the respondents were not restrained from raising construction the appellant will be subject to hardship and irreparable loss.

Mr. P.N Goja, Learned Counsel for the Appellant, argued that the trial Court erred in not allowing the prayer of the appellant in the application and allowing the defendants to raise the construction with the conditions as mentioned in the impugned order. The argument in precise raised on behalf of the appellant is that the documents on which the defendants rely upon do not confer any legal right in the property and as the issues raised in the suit require consideration, therefore, the order impugned is bad in law. It was also contended that the impugned decree was patently erroneous in law as the court passed the decree though the father of the appellant was necessary party in the case and had every right to agitate the matter. It was argued that the suit was filed with a purpose to deprive the real owner of his property in question.

Mr. M.L Gupta, Learned Counsel for the Respondents, submitted that the trial court was justified. It was contended that the right on which the plaintiff claims relief in the suit is yet to be decided and there being no dispute that the defendants are in possession of the suit property, therefore, the order whereby the defendants were given permission to raise construction cannot be faulted with. It was also put forth that placing reliance on precedents, favour cannot be found to grant relief to the appellants in the appeal on the ground that no legal right existed in favour of the appellants.

The High Court of Jammu & Kashmir and Ladakh at Jammu, noted that the intervening circumstances appearing in the matter do not otherwise also make out the physical possession of the appellant. It was reaffirmed that it is always the overall facts and circumstances of the case which determine as to whether the plaintiff is entitled to the interim relief or not. It was clarified that the court is not convinced that any irreparable loss is going to be caused to the plaintiff in case the interim relief as prayed for in the application is not granted at this stage of the case. Having considered the facts and evidence presented, as well as arguments, the Court opined that the trial court has not faulted while passing the impugned order. The Court asserted that direction passed by the trial court that the defendants cannot be denied from enjoying the property is not erroneous and illegal discretion exercised by the trial court merely because the issues have been raised by the plaintiff and he may ultimately succeed in the suit. It was noted that the trial court while allowing the defendants to raise construction has also directed the defendants to remove the construction for any development on the suit land at their own costs if they fail in the suit and sell out and shall further not to alienate the land till the disposal of the suit. The court expressed its view that the conditions imposed by the trial court while disposing of the interim application has taken complete care of the interest of the appellant herein in case the appellant finally succeeds in the suit. No interference was deemed to be required by this Court in the present appeal against the order impugned. The appeal was found without merits and was, accordingly, dismissed.

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Judgement reviewed by Bhargavi

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