No Equity Or Permission To Construct Can Be Extended To Party Accused Of Disobeying Court Orders: J&K&L High Court

The Court held that permission to construct during the pendency of a suit, subject to an undertaking to demolish in case of an adverse decision, is not a matter of absolute rule or right, and that each case turns on its own individual facts and circumstances.

The Court thus dismissed a petition filed under Article 227 of the Constitution of India, holding that the trial court and the appellate court had rightly passed the impugned orders directing the parties to maintain status quo.

The Court was hearing a petition filed under Article 227 of the Constitution of India challenging an order passed by the Principal District Judge, Anantnag, dismissing an appeal against an order passed by the Munsiff, Shangus. The trial court had directed the parties to maintain status quo with regard to the nature and user of the suit property in a suit for declaration, partition, and separate possession. The petitioner contended that the parties had amicably resolved their disputes and constructed structures pursuant thereto, and sought permission to lay the roof slab.

The petition was heard by Justice Rajnesh Oswal, who observed,

“Where a party stands accused of disobeying court orders, no equity or permission to construct can be extended to him/her.”

Background

The respondents filed a suit for declaring them to be the owners and entitled to succeed to the share left by their uncle from the suit land, and for partition by metes and bounds with separate possession. The respondents also sought a direction commanding the petitioner to demolish the structures and the plinth raised by him during the pendency of the case in violation of the status quo order.

The trial court, in terms of an order directed the defendants in the suit to maintain status quo with regard to the suit land. The petitioner filed his written statement objecting to the claim of the respondents, stating that the suit property had been privately partitioned by metes and bounds some five years back, and that the respondents had raised construction of a second storey of their residential house, while the son of the petitioner had also raised a single storey house up to the slab level.

Subsequently, the trial court disposed of the application for grant of interim relief by directing the parties to the suit to maintain status quo with regard to the suit property. The trial court observed that the petitioner had filed an application under Section 151 of the Code of Civil Procedure seeking partition of the suit property, which was in direct contradiction to the stand taken by him in the written statement.

The trial court further observed that despite existing status quo orders, the petitioner attempted to alter the character of the suit property by constructing a residential house, leading to the institution of contempt proceedings against the petitioner and his son. Additionally, the trial court noted that the pre-amended written statement filed by the petitioner contained no mention of construction being undertaken on the suit property.

The petitioner challenged the order of the trial court before the Appellate Court, which upheld the trial court's observation that disputed questions of co-ownership, inheritance, partition, and unauthorized construction could only be determined through trial. The Appellate Court noted that the petitioner's own partition application reinforced the respondents' position that no prior partition had taken place.

The petitioner contended before the High Court that the trial court and the Appellate Court failed to appreciate that the dispute between the parties stood settled through the intervention of respectable members of the locality. The petitioner contended that respondent No.2 constructed his residential house after availing financial assistance under a Government housing scheme, and the petitioner constructed the first floor over his residential-cum-commercial building and proceeded to raise further construction up to the slab level.

The petitioner contended that the conduct of the respondents attracted the equitable doctrine of waiver, acquiescence, and estoppel. The petitioner also contended that unless permission was granted to lay the roof slab, the unfinished structure would remain exposed to adverse weather conditions, resulting in structural deterioration.

Courts Observations:

The Court observed that it was necessary to take note of the limited scope of interference in terms of Article 227 of the Constitution of India. The Court referred to Garment Craft v. Prakash Chand Goel (2022), wherein the Hon'ble Apex Court held that the High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based, and that the power under Article 227 is exercised sparingly in appropriate cases.

The Court further referred to Shruti Manav Sharma v. Sunaina Singh (2026), wherein the Hon'ble Apex Court observed,

“An order on an application for temporary injunction is a discretionary one, and an appellate court does not ordinarily substitute its own discretion for that of the court of first instance, save where the discretion has been exercised arbitrarily, capriciously or perversely, or in ignorance of the settled principles governing the grant or refusal of such relief.”

The Court observed that the order passed in an application for temporary injunction is a discretionary order and cannot be interfered with unless the discretion is perverse or contrary to the settled principles of law. The Court noted that the trial court, after examining the record, had exercised its discretion in directing the parties to maintain status quo, and the discretion exercised by the trial court could not be termed as perverse or contrary to record. The Court did not find any jurisdictional error committed by the trial court and the Appellate Court while passing the impugned orders.

The Court noted the submission of the petitioner that although he had raised construction up to the lintel level, he could not lay the lintel, and was prepared to furnish an undertaking to demolish the same should the contesting respondents succeed in the suit. The Court held,

“But the fact remains that serious allegations have been levelled against the petitioner and his son that this construction was raised in willful violation of the trial court's status quo orders, leading to initiation of contempt proceedings against them.”

Underscoring that the order passed on an application for temporary injunction is discretionary and cannot be interfered with unless perverse the Court held that the petitioner stood accused of willfully disobeying the status quo orders, leading to contempt proceedings, and that no equity or permission to construct could be extended to him.

Finding no merit in the petition, the Court dismissed it.