Assadullah Ahanger vs Abdul Ahad Ahanger

This revision is directed against an interim order recorded on 29.11.1999 by the learned Sub Judge, Budgam, in case arising of Civil Original

suit titled as Abdul Ahad Ahanger vs. Assadullah Ahanger.

It appears that suit for perpetual injunction came to be instituted before the trial court by the respondentplaintiff praying there in that the

petitioner defendant be permanently restrained to install a Lathe Machine on the land comprising under Survey Nos. 1113 and 1115 located at

Nowgam adjacent to the house of the plaintiffrespondent and also permanently restraining him from running his factory in such a way which may

adversely affect his house. In the plaint, it is inter alia averred that plaintiff and defendant have constructed their houses adjacent to each other on

the said survey numbers and the defendant has installed a Lathe Machine there. That now the defendant wants to extend his business by

demolishing his house which may adversely affect the house of the plaintiffrespondent in as such as there is likelihood of collapsing the house when

the said Machine shall start running. Alongside the suit, the respondent plaintiff came to file an application for issuance of perpetual injunction. The

trial court, by virtue of the impugned order, came to accept the application, the operative portion of the order is reproduced below :

In view of the above discussion, this application is accepted and the defendants are temporarily restrained for running the Lathe and Welding unit

on spot till the final disposal of the main suit....

Heard learned counsel for the parties.

From the perusal of the impugned order and the certified copy of the suit on the file, it is clearly manifest that the suit of the plaintiffrespondent is

that the defendants be permanently restrained to in stall a Lathe Machine on the land comprising of Survey No's 1113 and 1115 located at

Nowgam, adjacent to the house of the plaintiff and also desist from running his factory in such a way which may adversely affect his house after

stating that his house and that of the plaintiff are adjacent to each other where the defendants is installing a Lathe Machine and a now wants to

extend his business by demolishing his house, the trial court by passing the impugned order has granted temporary injunction till final decision in the

main suit, whereby completely restraining the defendant petitioner from running the Lathe and Welding Machine on spot which is manifestly beyond

the scope of the suit. It is admitted position of law that the court has no jurisdiction to grant by way of interim relief, what could never be granted in

the main suit itself. The interim injunction granted during the pendency of the suit should not be greater in scope that what could be granted in suit

i.e. to say there can be no question of granting temporary injunction outside the scope of the suit.

Since the impunged order has been passed beyond the jurisdiction vested in the trial court, therefore, the order is revisable. In this behalf

reference is made to AIR 1998 J&K, 73.

Viewed thus, the order impugned suffers with jurisdictional error and is ma terial irregular, if allowed to stand shall cause injustice to the

petitioner/defendant, therefore, the motion of revision succeeds and the order impugned is set aside.

The court below is informed about the order.