[Section 104 CPC] Jammu & Kashmir High Court Says Power Of Appellate Court Circumscribed In Injunction Matters

“...the power exercised by the appellate Court under Section 104 [Orders from which appeal lies] read with Order 43 (1) CPC [Appeal from orders] are not analogues to the powers exercised by the appellate Court under Section 96 [Appeal from original decree] read with Order 41 [Appeal from original dcree] of the Code. In the matter of injunctions, the powers of the appellate Court are circumscribed and the appellate Court would be loath to interfere with the exercise of discretion and would not normally be justified in interfering with the exercise of lower Courts discretion under appeal solely on the ground that if the appellate Court had considered the matter at the trial stage it may have come to a contrary conclusion”, Justice Javed Iqbal Wani observed.

The observations came while hearing a petition filed under Article 227 of the Constitution, challenging a District Court order reversing the injunction granted in favour of the petitioner.

At the heart of the case was a suit initiated by the petitioner, which sought declarations, mandatory injunctions, and perpetual injunctions against the respondents. The petitioner concurrently submitted an application for interim relief aimed to halt a fresh tender notice issued in relation to the subject matter of the ongoing case. The trial court issued notices and granted a stay on the fresh tender notice.

In response, respondents lodged a miscellaneous appeal which came to be allowed, setting aside the stay on tender.

Delving into the distinction between discretionary powers exercised by appellate courts in injunction matters and their powers in regular civil matters, Justice Wani said appellate courts should refrain from overturning lower court decisions, particularly if the lower court's exercise of discretion was reasonable and prudent.

Referring to Mysore State Road Transport Corporation Vs. Mirja Khasim Ali Beg and Ors (1977)  the bench reiterated that only if the discretion is not exercised by the trial Court in the spirit of the statute or fairly or honestly or according to the rules or reason and justice, the order passed by the lower court can be reversed by the appellate court.

Also criticising the appellate court for effectively conducting a mini-trial and opining on the merits of the case, which is an approach forbidden by law the bench observed,

“A further perusal of the impugned order would further demonstrate that the appellate Court while adjudicating the miscellaneous appeal has literally held a mini trial and expressed opinions qua the merits of the case which it could not have, as same is forbidden in law”.

Therefore, the Court set aside the impugned order.

Case Title: Mudasir Nazir Vs University Of kashmir

Citation: 2023 LiveLaw (JKL) 210

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