The correct legal position as is clear from the
statutory provision is as under:
(i)
Both
the
plaintiff
and
the
defendant can
maintain an application U/o XXXIX Rule 1(a) of
the Code for the reliefs set out in the said
provision;
(ii)
Insofar as relief under Order XXXIX Rule 1 (b)
and (c) is concerned, such a relief is available
only to the plaintiff and the defendant cannot
maintain an application for the said reliefs in a
suit filed by the plaintiff, irrespective of the fact
that his right to such relief arises either from the
same cause of action or a cause of action that
arises subsequent to filing of the suit.
However it is open to the defendant to maintain
a separate suit against the plaintiff and seek
relief provided under Order 39 Rule 1(b) and (c)
of the Code.
(iii)
In cases which do not fall under Order XXXIX
Rule 1 of the Code, the Court has the inherent
jurisdiction to grant the relief of injunction in its
discretion, if it is satisfied that such an order is
necessary to meet the ends of justice or to
prevent abuse of process of the court and
nothing in this Code shall limit or otherwise
affect such inherent power of the court.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05TH DAY OF SEPTEMBER, 2014
P RESENT
THE HON’BLE MR. JUSTICE N. KUMAR
THE HON’BLE MR. JUSTICE B.S.PATIL
AND
THE HON’BLE MRS. JUSTICE RATHNAKALA
WRIT PETITION NO.58906/2013 (GM-CPC)
SMT.SHAKUNTHALAMMA
W/O CHINNAPPA,
Vs
SMT.KANTHAMMA,
W/O LATE BHEEMANNA,
Citation; AIR 2015 karnataka13
These writ petitions are placed before us by the Hon’ble
Chief Justice on the request of the Learned Single Judge to refer
the following question to a larger Bench for consideration:
“Whether the defendant in a suit for declaration and
injunction can maintain an application for injunction
under Order 39 Rule 1(c) of the Civil Procedure Code,
1908?”
2.
Before answering the above question, it is useful to
briefly refer to the facts giving rise to the reference.
3.
W.P.No.58906/2013 is filed by the plaintiffs in
O.S.No.499/2010, a suit instituted on 02.12.2010 before the
Principal Civil Judge (Jr. Dn.), Chitradurga for permanent
injunction restraining the defendants from interfering with their
peaceful possession and enjoyment of the suit property. The
7
plaintiffs also sought interim order of temporary injunction by
filing an application U/o XXXIX rules 1 and 2 of CPC but, the
court passed an exparte order on 03.12.2010 to maintain status-
quo, till appearance of the defendants. On service of summons,
the defendants appeared on 01.0.2011 and the 3rd defendant, on
09.08.2012, filed I.A. No.11 U/o XXXIX rules 1 and 2 of CPC
seeking an order of temporary injunction restraining the plaintiffs
from disturbing his peaceful possession and enjoyment of the suit
property.
The learned Civil Judge by order dated 16.01.2013
dismissed I.A.No.11 filed by the 3rd defendant U/o XXXIX Rules 1
and 2 of CPC. Aggrieved by the same, the 3rd defendant preferred
M.A.No.12/2013 and the learned Civil Judge (Senior Division),
Chitradurga, while allowing the appeal set aside the order of
dismissal of I.A.No.11 and granted an order of temporary
injunction against the plaintiffs. Aggrieved by the said order the
plaintiffs have filed the writ petition.
4.
W.P.No.16412/2014, is filed by the plaintiffs in
O.S.No.19/2012, a suit filed on 18.06.2012 for a declaration that
8
they are the lawful owners in peaceful possession and enjoyment
of suit properties and for a decree of permanent injunction. The
plaintiffs had also maintained an I.A. for temporary injunction
restraining the defendants from interfering with their peaceful
possession and enjoyment of the suit property.
After service of
summons, the defendants entered appearance. On 13.06.2013,
the 1st defendant too filed an I.A. U/o XXXIX Rules 1 and 2 of
CPC for an order of temporary injunction to restrain the plaintiffs
from interfering with his peaceful possession and enjoyment of
item No.1 of the suit schedule. The trial Court after hearing the
parties, while dismissing the I.A. for temporary injunction filed
both by the plaintiffs and the 1st defendant, directed them to
maintain status-quo in respect of the suit schedule properties till
the disposal of the suit. Aggrieved by the dismissal of I.A. No.7,
the 1st defendant preferred M.A.16/2013 before the District
Court, Chitradurga. The Principal District and Sessions Judge,
Chitradurga by order dated 24.01.2014, allowed the appeal, set
aside the order of the trial Court and granted temporary
injunction restraining the plaintiffs from interfering with the 1st
9
defendant’s peaceful possession and enjoyment of 1st item of the
suit schedule, by allowing I.A. No.7. Aggrieved by the same the
plaintiffs have preferred the writ petition.
5.
The parties are referred to as per their original rank
before the trial court for the sake of convenience.
6.
Learned Counsel for the plaintiffs submitted that
Section 94 of CPC r/w Order XXXIX Rules 1 and 2 of CPC confers
power on the Civil Court to grant an order of temporary
injunction. While the defendant in a suit is conferred with right to
seek temporary injunction in a case falling under Clause (a) of
Order XXXIX rule 1 of CPC, no such right is conferred on him in
the cases falling under Clause (b) and (c) thereof. The civil court
no doubt, has inherent powers to pass such orders as may be
necessary to meet the ends of justice or to prevent the abuse of
process of Court, but the same cannot be exercised when a case
is covered by specific provisions of CPC. In the case on hand the
defendant’s stand is covered U/o XXXIX Rule 1(c) where no right
10
is conferred on him to a relief of temporary injunction and
therefore the Court could not have granted the said relief in
exercise of its inherent powers. The Appellate Court has
committed a serious error in granting an order of injunction in
favour
of
the
1st
defendant
in
O.S.19/12
while
allowing
M.A.16/2013.
7.
Per contra, learned Counsel for the defendants
supported the order passed by the Appellate Court by arguing
that when the case of the defendant does not fall U/o XXXIX Rule
1(c) of CPC and the circumstances call for exercise of inherent
powers, the Court could exercise the same to grant the relief and
the Appellate Court has rightly granted temporary injunction in
favour of the 1st defendant as prayed.
8.
For answering the question referred to this Bench it
is necessary to refer to the relevant statutory provisions of the
Code of Civil Procedure, 1908 (hereinafter referred to as ‘the
Code’).
11
9.
Section 94 under Part-VI of the Code dealing with
supplementary proceedings, sets out the nature of order that a
court may pass in order to prevent justice being defeated and it
reads as under:
“Section 94. Supplemental proceedings - In order
to prevent the ends of justice from being defeated the
court may, if it is so prescribed –
(a) issue warrant to arrest the defendant and bring
him before the court to show cause why he should not
give security for his appearance, and if he fails to
comply with any order for security commit him to the
civil prison;
(b) direct the defendant to furnish security to produce
any property belonging to him and to place the same
at the disposal of the court of order the attachment of
any property;
(c) grant a temporary injunction and in case of
disobedience commit the person guilty thereof to the
civil prison and order that his property be attached
and sold;
12
(d) appoint a receiver of any property and enforce the
performance of his duties by attaching and selling his
property;
(e) make such other interlocutory orders as may
appear to the court to be just and convenient.”
10.
Clause (c) of Section 94 of the Code states that a
Court may grant a temporary injunction there under, only “if it is
so prescribed”.
Section 2(16) of the Code defines the word
“Prescribed” to mean “Prescribed by the Rules”. Therefore
temporary injunction may be granted U/s 94(c) of the Code only if
a case satisfies the requirements of the Rules 1 and 2 of Order
XXXIX of the Code and not otherwise. Therefore, when a matter
comes before the Court, it has to examine the facts and ascertain
whether the conditions of Section 94 r/w order XXXIX Rules 1
and 2 of the Code are satisfied and only thereafter grant
appropriate relief.
11.
The relevant rule relating to grant of temporary
injunction is also culled out for easy reference and it may be
13
pertinent to point out at this juncture itself that clause (c) Rule 1
of Order XXXIX of the Code was inserted by Act No.104/1976
w.e.f. 01.02.1977.
“1. Cases in which temporary injunction may be
granted.- Where in any Suit it is proved by affidavit or
otherwise—
(a)
that any property in dispute in a suit is in
danger of being wasted, damaged or alienated
by any party to the suit, or wrongfully sold in
execution of a decree, or
(b)
that the defendant threatens, or intends, to
remove or dispose of his property with a view to
defrauding his creditors,
(c)
that the defendant threatens to dispossess the
plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in the suit.
The court may by order grant a temporary
injunction to restrain such act, or make such
other order for the purpose of staying and
preventing the wasting, damaging, alienation,
sale, removal or disposition of the property or
14
dispossession of the plaintiff, or otherwise
causing injury to the plaintiff in relation to any
property in dispute in the suit as the Court
thinks fit, until the disposal of the suit or until
further orders.
(Underlining by us)
12.
A careful reading of the aforesaid provision discloses
that the Court is empowered to grant three types of orders under
three different and distinct situations. Firstly when the property
in dispute is in danger of being wasted, damaged or alienated or
wrongfully sold in execution of a decree, temporary injunction to
prevent the same can be granted. The second situation arises
when the disputed property is under the threat of being removed
or disposed of by the defendant with the intention of defrauding
his creditors who include the plaintiff also. The third situation is
when the defendant threatens to dispossess the plaintiff or
otherwise causes injury to the plaintiff in respect of disputed
property.
15
13.
Clause (a) of Order XXXIX rule 1 CPC provides that
where in any suit it is proved by affidavit or otherwise, that any
property in dispute in a suit is in danger or being wasted,
damaged or alienated “by any party” to the suit, or wrongfully
sold in execution of a decree, the Court may by order grant a
temporary injunction to restrain such act, or make such other
order for the purpose of staying and preventing the wasting,
damaging, alienation, sale, removal or disposition of the property.
The reason is obvious. After institution of the suit, the plaintiff
may act detrimental to the interest of the defendant in the subject
matter of the suit by allowing it to be wasted or damaged or
alienated and in such an event, the defendant can take recourse
to making application U/o XXXIX Rule 1(a) CPC.
14.
What Clause (b) of Order XXXIX rule 1 of CPC
envisages is that a plaintiff can seek temporary injunction when
there is a threat by the defendant to dispose of the property with
a view to render the decree that may be passed in the suit useless
or infructuous. Similarly, under Clause (c) of order XXXIX rule 1
16
CPC whenever the defendant threatens to dispossess the plaintiff
or otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit, the Court may restrain
dispossession of the plaintiff until the disposal of the suit or until
further orders.
15.
The Legislature has consciously used the words “any
party to the suit” in Rule 1(a) of order XXXIX CPC but the same is
conspicuously missing in Clauses (b) and (c). However, the words
“the defendant threatens” appearing in Clauses (b) and (c) of rule
1 of order XXXIX CPC make it clear that the Court can grant an
order of temporary injunction only in favour of the plaintiff
because the Legislature has expressly not included the words
“plaintiff threatens” and also not used the words “any party to the
suit” in these clauses.
16.
In fact, this Court had an occasion to consider the
scope of Clauses (a), (b) and (c) of Order XXXIX Rule 1 CPC in the
case of Veerabhadrappa –vs- Mayappa reported in ILR 1993
17
KAR 161 has pointed out the distinction between them in the
following words:
“These provisions make it abundantly clear that it is
only under Sub-clause (a) of Order 39 Rule 1 CPC that
any party to the suit could be restrained by means of
an order of temporary injunction, which clearly pre-
supposes that either the plaintiff or the defendant
could file the application against the other party under
this particular sub-clause. The other two sub-clauses
viz., (b) and (c) of Order 39 Rule 1 CPC as also Order
39 Rule 2 CPC enable the Court to grant injunction
against the defendant restraining him from committing
the several acts mentioned therein.
The word ‘any
party’ occurring in Sub-rule (a) of Rule 1 does not find
a place in theses Rules. Therefore it is clear that it is
only the plaintiff that could seek redress under these
Rules against the defendant.
Having regard to the
plain language of these Rules, by no means could it be
contended that defendant is entitled to obtain an order
of injunction against the plaintiff under these very sub-
rules.
A faint attempt was made by the learned
Advocate
for
respondent
by
relying
upon
the
observations made by the Supreme Court in the
Decision reported in MANOHAR LAL CHOPRA V. RAI
18
BAHADUR RAO RAJA SETH HIRALAL (AIR 1962 SC
527), wherein it has been mentioned that there is
nothing in Order 39 Rules 1 and 2 which provides
specifically that a temporary injunction is not to be
issued in cases which are not mentioned in those
Rules. This observation of the Supreme Court has to
be read in the context of the earlier and later
observations made therein wherein their Lordships
have discussed the aspect that the Court has always
got inherent powers to grant injunction under Section
151 CPC. It is in that context that in Paragraph 19 it
has been stated that the particular Rules do not
provide that no injunction should be issued in cases
which
are
not
mentioned
therein.
By
these
observations it cannot be said that the Court could still
grant injunction under those very Rules themselves in
respect of cases which do not fall under the said
Rules. Therefore, the contention that even under these
sub-rules viz., Sub-rule (b) and (c) of Rule 1 or Rule 2 of
Order 39 CPC a defendant can obtain an order of
injunction against the plaintiff cannot be accepted. It
is not the case of the defendant that the case put
forward by him fits into Sub-rule (a) of Order 39 Rule 1
CPC wherein any party could be restrained by grant of
an injunction”.
19
17.
Bombay High Court too in the case of Nanasaheb –
vs- Dattu & Others reported in AIR 1992 BOMBAY 24 has
expressed similar views as under:
“. . . . . . Provisions of Rule 1(a), 1(b) and 1(c) are
intended to meet different situations and different
purposes.
Rule 1(a) speaks about the injunctions
when the property is in danger of waste, damage or
alienation.
Whereas
Rule
1(b)
speaks
about
threatening removal or disposal from the property with
a view to defraud his creditors and Rule 1(c) speaks
about threatening dispossession or any other injury in
relation
to
the property.
Prayer for
injunction
restraining other party from obstructing enjoyment of
well water would be covered by Rule 1(c) of Order 39.
Mischief to be prevented by the temporary
injunction in respect of situations under Clauses (b)
and (c) of Rule 1 and under Rule 2 should be that of
the defendant. However, mischief to be prevented by
the temporary injunction in situations under Clause (a)
of Rule 1 can be from either of the parties.
A clear
distinction appears to have been deliberately made in
20
framing this rule by authorizing in respect of the
situations listed in Clause (a) of Rule 1 on one hand
and Clauses (b) and (c) of Rule 1 and Rule 2 on the
other hand.
In respect of situations covered by the
first clause, injunctions can be granted in favour of
either of the parties whereas in respect of situations
covered by other clauses injunction can be granted
only in favour of the plaintiff and not in favour of the
defendant..... ”
18.
From the above, it is clear that in a suit filed by the
plaintiff, it is open to the defendant to file an application only U/o
XXXIX Rule 1(a) of CPC seeking temporary injunction and the
Court on being satisfied that a case is made out for grant of such
injunction, can grant the same in its discretion. But, the
defendant cannot maintain an application U/o XXXIX rule 1(b)
and (c) of CPC at all.
SCOPE OF SECTION 151 CPC
19.
The next point would be, when the defendant is not
entitled to the relief of injunction against the plaintiff in a case
21
falling U/o XXXIX rule 1 clause (c) CPC whether the Court could
grant the relief in exercise of its inherent jurisdiction?
20.
The defendants have placed reliance upon the
judgments of the Apex Court in support of the contention that in
the absence of specific provision the court can exercise its power
U/s 151 of the Code and grant relief to the defendant or any party
to the suit.
For better appreciation of this contention it is
necessary consider the law laid down by the Apex Court in a
chronological order and before that, it is useful to refer to Section
151 CPC which reads as under:
“Sec.151. Saving of inherent powers of Court-
Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court to
make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court.”
21.
In para 8 of the judgment in Padam Sen and
Another –vs- State of Uttar Pradesh (AIR 1961 SC 218) the
Apex Court has held as under:
22
“......The inherent powers of the Court are in addition
to the powers specifically conferred on the Court by the
code. They are complementary to those powers and
therefore it must be held that the Court is free to
exercise them for the purposes mentioned in S. 151 of
the Code when the exercise of those powers is not in
any way in conflict with what has been expressly
provided in the Code or against the intentions of the
Legislature. It is also well recognized that the inherent
power is not to be exercised in a manner which will be
contrary to or different from the procedure expressly
provided in the Code”.
22.
While making it clear that though the Court has
inherent power to make such orders, as may be necessary for the
ends of justice or to prevent abuse of the process of the court, the
Supreme Court has placed three restrictions on exercise of
inherent power by the court namely,
(1)
Firstly, the inherent power should not be
exercised in any way in conflict with what has
been expressly provided in the Code;
23
(2)
Secondly,
the
power
cannot
be
exercised
against the intention of the legislature; and
(3)
Thirdly, it shall not be exercised in a manner,
which would be contrary to or different from the
procedure expressly provided in the Code.
23.
Subsequently,
the
Apex
Court
in
the
case
of
Manohar Lal Chopra –vs- Rai Bahadur Rao Raj Seth Hiralal
reported in AIR 1962 SC 527 after taking note of the divergent
views by various High Courts in the country, has held as under:
“18. There is difference of opinion between the High
Courts on this point. One view is that a Court cannot
issue
an
order
of
temporary
injunction
if
the
circumstances do not fall within the provisions of
Order XXXIX of the Code.
Court
can
issue
an
The other view is that a
interim
injunction
under
circumstances which are not covered by Order XXXIX
of the Code, if the Court is of opinion that the interests
of justice require the issue of such interim injunction.
We are of opinion that the latter view is correct and
that the Courts have inherent jurisdiction to issue
temporary injunctions in circumstances which are not
24
covered by the provisions of O.XXXIX, Code of Civil
Procedure. There is no such expression in Section 94
which expressly prohibits the issue of a temporary
injunction in circumstances not covered by Order
XXXIX or by any rules made under the Code. It is well-
settled that the provisions of the Code are not
exhaustive, for the simple reason that the Legislature
is
incapable
of
contemplating
all
the
possible
circumstances which may arise in future litigation and
consequently for providing the procedure for them. The
effect of the expression 'if it is so prescribed' is only
this that when the rules prescribe the circumstances in
which
the
temporary
injunction
can
be
issued,
ordinarily the Court is not to use its inherent powers to
make the necessary orders in the interests of justice,
but is merely to see whether the circumstances of the
case bring it within the prescribed rule. if the
provisions of Section 94 were not there in the Code, the
Court could still issue temporary injunctions, but it
could do that in the exercise of its inherent jurisdiction.
No party has a right to insist on the Court's exercising
that jurisdiction and the Court exercises its inherent
jurisdiction only when it considers it absolutely
necessary for the ends of justice to do so. It is in the
incidence of the exercise of the power of the Court to
25
issue temporary injunction that the provisions of
Section 94 of the Code have their effect and not in
taking away the right of the Court to exercise its
inherent power”.
19. There is nothing in Order XXXIX, rules 1 and 2,
which provide specifically that a temporary injunction
is not to be issued in cases which are not mentioned in
those
rules.
The
rules
only
provide
that
in
circumstances mentioned in them the Court may grant
a temporary injunction”.
24.
Further in para 21, the Apex Court also made
reference to Padam Sen’s case After referring to the observations
which is as below:
“These observations clearly mean that the inherent
powers are not in any way controlled by the provisions
of the Code as has been specifically stated in S. 151
itself. But those powers are not to be exercised when
their exercise may be in conflict with what had been
expressly provided in the Code or against the
intentions of the Legislature. This restriction, for
practical purposes, on the exercise of those powers is
not because those powers are controlled by the
26
provisions of the Code but because it should be
presumed that the procedure specifically provided by
the Legislature for orders in certain circumstances is
dictated by the interests of justice”.
25.
In this context, it is useful to refer to the observations
of the Supreme Court in the case of The Commissioner of Sales
Tax, Uttar Pradesh, Lucknow –vs- M/s.Parson Tools and
Plants, Kanpur reported in AIR 1975 SC 1039 wherein at para-
18 it is held as under:
“We have said enough and we may say it again that
where the Legislature clearly declares its intent in the
scheme and language of a statute, it is the duty of the
Court to give full effect to the same without scanning
its wisdom or policy, and without engrafting, adding or
implying anything which is not congenial to or
consistent with such expressed intent of the law-giver .
. . . .”
26.
Again the Apex Court in the case of Cotton
Corporation of India Limited –vs- United Industrial Bank
Limited and others, AIR 1983 SC 1272 dealing with the power
27
of the Court to grant temporary injunction, inspite of prohibition
under Section 41(b) of the Specific Relief Act and after referring to
the judgments of the Apex Court in the case of Manohar Lal
Chopra and Padam Sen (supra), has held as under:
“......In view of the majority decision, it must be
conceded that the court can in appropriate cases grant
temporary injunction in exercise of its inherent power
in cases not covered by Order 39 C.P.C.
But while
exercising this inherent power, the court should not
overlook the statutory provision which clearly indicates
that injunction to restrain initiation of proceeding
cannot be granted.
Section 41 (b) is one such
provision. And it must be remembered that inherent
power of the court cannot be invoked to nullify or
stultify a statutory provision.......”
27.
Therefore, what follows from the above is that,
though the provisions of the Code are not exhaustive, the Court
can grant an order of temporary injunction in its inherent
jurisdiction, even though the matter does not fall under Order
XXXIX of the Code. It is true that Order XXXIX Rules 1 and 2 do
28
not provide specifically that a temporary injunction shall not be
issued in cases, not mentioned in those Rules.
But, once the
Legislature prescribes the cases in which an order of temporary
injunction is to be granted and the cases in which such an
injunction cannot be granted, the Court should respect the
legislative intent, as reflected by the statutory provisions.
The
legislative intent may be either express or may be clear by
necessary implication. As long as the intention of the Legislature
could be gathered from the provisions and it is clear, inherent
power should not be exercised, then to nullify or stultify such a
provision.
28.
The instant case would fall U/o XXXIX Rule 1 of CPC
and therefore the court cannot grant temporary injunction by
exercising its inherent powers. If this were to be a case not
covered U/o XXXIX rule 1 and 2 CPC then the court could in
exercise of inherent jurisdiction, grant and order of temporary
injunction.
29
CONCEPT OF SAME CAUSE OF ACTION
29.
Realizing the above difficulties and to overcome to the
same, it was contended that the defendant can maintain an
application for injunction, if the relief sought is incidental to the
plaintiff’s cause of action or arises out of it.
In support of the
same judgment of this Court in the case of Suganda Bai –vs-
Sulu Bai & Others (1975) 1 KLJ 96, is relied upon. This was a
case where reliance was placed on two English authorities to hold
that:
“Now the principles, under which a defendant may
seek and obtain an order of temporary injunction
against
the
plaintiff,
are
stated
in
Collison
v.
Warren(1), where Buckley, J., after referring to a
number of earlier decisions of the English Courts,
quoted Lopes, LJ., in (1824) 2 Ch.545:
“The question is this - whether the defendant
can move for an injunction against the plaintiff without
filing a counter-claim or issuing a writ in a cross-
action. In my opinion, he can in some cases, but only
in cases where the defendant’s claim to relief arises
30
out of the plaintiff’s cause of action, or is incidental to
it”.
30.
At the outset, the provisions of Order XXXIX Rule 1
and 2 CPC are not interpreted in Suganda Bai’s case. Secondly,
Order XXXIX Rule 1(c) was not in the statute book as on the date
of that judgment and it came to be incorporated w.e.f. 01.02.1977
by Act No.104/1976. Thirdly, this Court while deciding Suganda
Bai’s case relied on the judgments of the English Court, which
were based on common law whereas, in the case on hand we are
called upon to interpret a statutory provision contained in the
Code of Civil Procedure, a codified law. Nowhere in Order XXXIX
Rule 1 and 2 of CPC are the words “cause of action” referred to.
Therefore, it would be contrary to the statutory provision
contained in the Code of Civil Procedure to hold that the
defendant can maintain an application for injunction on the same
cause of action, on which the plaintiff has come to the court.
31.
However, on an earlier occasion when it was found
that the judgments on the point do not lay down the correct law,
31
a reference was made to the Division Bench in the case of
Ramaiah –vs- Gowdappa reported in ILR 1989 KAR 962
on
the following questions:
“1. Whether the defendants can file an application
seeking temporary injunction against the plaintiffs in a
suit filed by the plaintiffs? And
2. Whether the decision of this Court in SUGANDA BAI
vs SULU BAI & OTHERS (1975(1) KLJ 96) places any
restriction
in
the
matter of
grant of
temporary
injunction in favour of defendants in a suit filed by the
plaintiffs?”
32.
The Division Bench, relying on the judgment of the
Apex Court in MANOHARLAL CHOPRA’s case (cited supra), held
that the defendant can maintain an application under Order
XXXIX Rule 1 and 2 for an injunction against the plaintiff by
making a distinction between a suit for partition and separate
possession and a suit for bare injunction and the judgment in
Suganda Bai’s case was held to be in conformity with the view
taken in MANOHARLAL CHOPRA’s case. In both the judgments,
32
the difference in the language employed in Rule 1 (a) and Rules
1(b) and (c) is not noticed.
Therefore, we are of the view that,
when the statute prescribes a particular procedure set out in a
provision in which the word “cause of action” is conspicuously
missing, it is not possible to hold that a defendant can maintain
an application for injunction if it is based on the same cause of
action as that of the plaintiff or incidental thereto and further
that, such an application cannot be maintained if the cause of
action for the defendant arises subsequent to the cause of action
the plaintiff has pleaded. We do not find any support to such a
proposition of law as is laid down in the above two judgments and
therefore, we over rule the same.
33.
The correct legal position as is clear from the
statutory provision is as under:
(i)
Both
the
plaintiff
and
the
defendant can
maintain an application U/o XXXIX Rule 1(a) of
the Code for the reliefs set out in the said
provision;
33
(ii)
Insofar as relief under Order XXXIX Rule 1 (b)
and (c) is concerned, such a relief is available
only to the plaintiff and the defendant cannot
maintain an application for the said reliefs in a
suit filed by the plaintiff, irrespective of the fact
that his right to such relief arises either from the
same cause of action or a cause of action that
arises subsequent to filing of the suit.
However it is open to the defendant to maintain
a separate suit against the plaintiff and seek
relief provided under Order 39 Rule 1(b) and (c)
of the Code.
(iii)
In cases which do not fall under Order XXXIX
Rule 1 of the Code, the Court has the inherent
jurisdiction to grant the relief of injunction in its
discretion, if it is satisfied that such an order is
necessary to meet the ends of justice or to
prevent abuse of process of the court and
nothing in this Code shall limit or otherwise
affect such inherent power of the court.
Accordingly, we answer the question of law referred to for
our consideration in the negative.
34
34.
Office is directed to place these writ petitions before
the learned Single Judge for disposal in accordance with the
judgment rendered by us in these cases.
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
NVJ & KNM/-
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