Presentation Convent Hr.Sec.School vs Riyaz Ahmad Dagga

Rajnesh Oswal, J

The respondent had filed a suit for injunction for directing the petitioner to grant admission to his younger ward in Class LKG for the session 2020-

2021 on the ground that the sibling of the ward was already enrolled in class 3rd in the same school and also on the ground that the ward of the

respondent fulfilled the eligibility criteria.

In the said suit it was also pleaded that the petitioner had categorically denied the admission to the ward of the respondent and the respondent had

filed a representation before the petitioner school but the same was not considered, as such, the cause of action accrued to him for filing the said suit.

Alongwith the said suit an application for grant of interim relief was filed, in which following prayer was made:-

“ In the premises, it is therefore prayed that till disposal of the main suit , the non-applicant School may be directed to consider the representation

filed by the plaintiff, same would be in the interest of law and justice.â€​.

The said suit was transferred to the court of learned Sub Judge/ Chief Judicial Magistrate, Srinagar hereinafter for short referred to as “trial

court†and the learned trial court by virtue of order dated 10.12.2020 directed the petitioner to consider the representation filed by the respondent and

report by or before next date of hearing.

The petitioner filed objections and written statement before the trial court. It was stated by the petitioner in the written statement that the school

follows uniform procedure for admission and after interaction with the parents and the candidate assess the suitability of the candidate to fit in the

environment and curriculum of the school. For the said purpose, experts having decades of experience in the same, conduct the said interaction. The

decision of the petitioner not to admit the daughter of the respondent was based on the opinion of experts. It was also stated that there is no rule which

provides that a candidate shall be admitted merely because her sibling is the student of the school. Further, it was also pleaded that the respondent has

no where pleaded malafides that the daughter of the respondent had been deliberately dropped from the selection list. The petitioner also considered

the representation of the respondent and vide order dated 24.02.2021 rejected the same. The learned trial court after considering the pleadings of the

parties vide order dated 11.10.2021 directed the petitioner to temporarily issue the provisional admission to the daughter of the respondent in class

LKG for academic session 2020-21 and in case, the new session had started or was likely to start in October, November, 2021, in such eventuality, the

daughter of the respondent be admitted in UKG class subject to her appearance in the annual exams of class LKG in case conducted by the school

authorities under the relevant norms applicable in the school. Simultaneously, the prayer of the petitioner for rejection of the plaint was also rejected.

Thereafter vide order dated 27.10.2021, learned trial court directed the Director School Education, Srinagar to implement the order dated 11.10.2021

in its letter and spirit.

The petitioner being aggrieved of the order dated 11.10.2021 has approached this court for quashing of the same on the following grounds:-

i. That the learned trial court while passing the order impugned has conducted a mini trial.

ii. That the petitioner being a private and un-aided educational institution has complete autonomy with regard to admission of students and this

autonomy includes the right to admit students of its choice and there cannot be any interference in such right.

iii. That the learned trial court has granted a relief which had not even been sought by the respondent and as such, trial court has gone beyond the

pleadings of the parties.

iv. That the minor daughter for whom the relief was sought was not even made party to the suit.

Mr.Suhail, has vehemently argued that mere perusal of the application for interim relief filed by the respondents would reveal that the relief prayed

for by the respondents was with regard to the consideration of representation filed by him. The petitioner considered the representation of the

respondent and rejected the same, as such it was not open for the learned trial court to issue interim injunction in a mandatory form particularly when

no such prayer was made. He further submitted that counsel for respondent had sought time for filing application for amendment of plaint as is evident

from order dated 09.03.2021 and once no such application was filed and pleadings were not amended, learned trial court could not have passed the

order impugned.

Per contra Mr.Shafaqat Nazir, submitted that learned Trial court has passed the order impugned well within the domain of law, as such, no fault can

be found with the said order. He further argued that as the elder daughter of the respondent was studying in the same school, it was obligatory on the

part of the petitioner to grant admission to the younger daughter of the respondent as well.

Heard learned counsel for the parties and perused the record.

This court is generally reluctant to show indulgence by invoking the powers under article 227 of the Constitution of India in the matters where the

final rights of the parties have not been determined as all the interlocutory orders are subject to the final order/judgment that may be passed

subsequently. But nonetheless in the instant case, it appears that the learned trial court has flouted the settled norms of law while deciding the

application for grant of interim relief and passing the order of interim mandatory injunction. The suit has been virtually decreed without any trial and

the order impugned has the ramifications as those of the final order/judgment, as such it has become necessary to consider the issues raised by the

petitioner.

It is settled position of law that interim mandatory injunction can be granted but the Plaintiff is required to have a case of higher standard than

mere prima facie case. In Hammad Ahmed v. Abdul Majeed, reported in (2019) 14 SCC 1, Apex Court has held that the ad interim mandatory

injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate

their rights regarding mandatory injunction.

The learned trial court in the instant case has granted the relief while deciding the application for grant of interim relief when in fact, no such

prayer was made by the respondent and the only prayer that was made by the respondent was with regard to the consideration of representation filed

by the him pending trial of the main suit and the said prayer was granted on the same day when the suit was instituted and transferred to learned trial

court. The petitioner complied with the order dated 10-12-020 passed in ex-parte, by considering the representation filed by the respondent and

rejected the same vide its order dated 24.02.2021. Even after rejection, the said order was never impugned and also no other motion was laid before

the learned trial court for seeking direction to the petitioner to admit the ward of the respondent provisionally but still the trial court on its own directed

the petitioner to admit the ward of the respondent provisionally by virtue of order impugned. No doubt, the order passed by the trial court while

deciding the application for interim relief was discretionary in nature but at the same time, discretion has to be exercised on the settled principles of

law. It was not a case where it was obligatory on the part of the petitioner to grant the admission to a particular candidate, when her sibling was

already the student of the petitioner school. Also it was not the case where the petitioner had not raised any plausible defence to the suit of the

respondent. As already observed above, for grant of interim mandatory injunction the plaintiff must have a case of higher standard than a mere prima

facie case and that was absent in the instant case. The respondent had yet to establish his right to get admission that was seriously disputed by the

petitioner. Further, perusal of the admission form reveals that in the declaration signed by the guardian/parent of the ward, it has been specifically

mentioned that

“I/we/also understand that the application/short-listing/registration does not guarantee admission to my ward.†The respondent no doubt, had a

right of consideration for seeking admission for his ward in the school but he had no unfettered right to get his ward admitted in the said school as the

selection was to be undertaken by the petitioner.

Further, the perusal of the order impugned revels that the learned trial court has virtually conducted the mini trial by getting the record summoned

from the petitioner and appreciating it by comparing the record of the respondent with the selected candidates as if the trial court was passing the final

judgment. In Anand Prasad Agarwalla vs. tarkeshwar Prasad &ors. reported in (2001)4SCC149, Apex Court has held that it may not be appropriate

for any court to hold a mini trial at the stage of grant of temporary injunction.

As the learned trial court has passed the order impugned without there being any motion/prayer for grant of the said relief and after virtually

conducting the mini trial while deciding the application for grant of interim relief, this court is of considered opinion that the trial court has exceeded its

jurisdiction and has committed a jurisdictional error while passing the order impugned.

Viewed thus, this petition succeeds and the order dated 11-10-2021 passed by learned Chief Judicial Magistrate/Sub Judge, Srinagar, to the extent

of directing the petitioner to grant provisional admission to the ward of the respondent in the petitioner school along with incidental directions, is set

aside. However, it is made clear that this order shall not come in the way of the respondent to lay any other motion before learned trial court and

further any observation made by this court is solely for the purpose of consideration of the issues raised by parties before this court and shall have no

bearing upon the merits of the case.

Disposed of.