1 CM(M) No. 119/2021 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 2 CM(M) No. 119/2021 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 3 CM(M) No. 119/2021 Trial Court is permissible if a case of perversity or error of jurisdiction is 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. 4 CM(M) No. 119/2021 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. 5 CM(M) No. 119/2021 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. 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 6 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 7 CM(M) No. 119/2021 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 injury 8 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”. 9 CM(M) No. 119/2021 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 10 CM(M) No. 119/2021 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 11 CM(M) No. 119/2021 (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. 12 CM(M) No. 119/2021 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