Surinder Kumar Sharma vs Vinod Kumar Sharma

J.P. Singh, Judge

The appellant-Surinder Kumar Sharma filed a Suit, on the basis of Right of Prior Purchase seeking his Substitution as Vendee, of a Single Storied residential House No. 805-A, Gandhi Nagar, Jammu comprising of, three rooms, one store, a kitchen and open yard, with land underneath and appurtenant thereto, in place of Vinod Kumar Sharma and Parveen kumar Sharma-respondent Nos. 1 and 2, the vendees, to whom the house was sold by Rakesh Chander Sharma- respondent No. 3 vide Sale Deed dated 16.09.2010 registered on 17.09.2010, besides seeking delivery of possession hereof. Alono with Suit he filed an Application seeking injunctive direct- ions against respondent Nos. 1 and 2 not to dispose of the suit property create any third party interest therein or change nature thereof.

Although, the Trial Court of learned Additional District Judge, Jammu, did not find prima facie case in favour of the appellant, yet while dismissing his Application, respondent Nos. 1 and 2 were restrained from alienating the Suit property during pendency of the Suit. The respondents-defendants were directed to file undertaking that in case the appellant-plaintiff succeeded in the Suit, they would remove improvements made by them in the property, at their own cost. It was further provided by the Trial Court that being absolute owners of the suit property, respondent Nos. 1 and 2 were free to use it, in the way they liked, permitting them to effect repairs and alterations therein.

Aggrieved by rejection of his Application for issuance of Interim directions against the respondents, the appellant has filed this Appeal seeking setting aside of the Trial Court's order, besides issuance of injunction against the respondents.

Heard learned counsel for the parties.

The finding returned by the Trial Court that the plaintiff did not have prima facie case warranting issuance of injunctive directions, proceeds on the premise that respondent Nos. 1 and 2, having become owner of the property, with execution of the Sale Deed in their favour by respondent

No. 3, the owner of the property, no Restraint order was permissible against them in restraining them from using the purchased property.

In my view, the learned Trial Court has proceeded on a wrong premise in coming to the conclusion that there was no prima facie case in favour of plaintiff-appellant, for, to examine as to whether or not there is any prima facie case warranting issuance of injunctive directions, in terms of Order 39 of the Code of Civil Procedure, in a suitor, the Court is required, inter alia, to find as to whether or not there was any existing right in the suitor which it seeks to enforce by the Suit, besides considering as to whether or not any injury was likely to be caused to the suitor in relation to the property, or to the property in question.

In this view of the matter the first step that the Court was required to take was to examine the right which the plaintiff-appellant had projected in the Suit property and thereafter find the likelihood of any injury that may be caused to him in respect of the suit property, or to the suit property itself, before considering other parameters necessary for considering issuance or otherwise of interim directions during pendency of the Suit.

The omission of the trial Court to examine the plaintiff's case from the above angle, however, does not affect the order passed by it, in that, the right projected by the petitioner to seek his substitution in place of respondent Nos. 1 and 2, based on his projected Right of Prior Purchase under the Jammu and Kashmir Right of Prior Purchase Act, 1993 (1936 A.D.), being a weak right, would not, as such, qualify the plaintiff-appellant to seek Restraint directions against the respondents-defendants. This is so because to qualify to seek injunctive directions against the defendants, the plaintiff must have, if not a strong prima facie case, a prima facie case, on the basis whereof, issuance of injunction in his favour could be considered keeping other parameters prescribed therefor in view.

Having said so on legal aspect of the matter, it is found that although the plaintiff-appellant's Suit was based on a weak right, yet the learned Additional District Judge has passed an equitable order protecting the appellant's right in the property, if he ultimately succeeds in the Suit by getting an Undertaking from the respondents that they would remove the additions/alterations made in the Suit property at their own cost and in this view of the matter, the order passed by the trial Court cannot be faulted.

During the course of consideration of the Appeal, Appellant's learned counsel submitted that permission granted to the respondents by the Trial Court to use the property in question in any way they so liked, was unwarranted, in that, the permission was likely to be misused by the respondents, who may use the suit property without following the provisions of laws in force in the State regulating use of immovable property.

The apprehension of the appellant's learned counsel is misconceived, for, the expression used in the learned Additional District Judge's order that respondents were free to use the property in the way they liked, making repairs or alterations therein, does not permit them so to do, in violation of the Municipal laws or other laws in force in the State regulating use and construcuction in and over the property.

For all what has been said above, this Appeal is found without merit, hence dismissed with above observations.