A defendant in a suit for permanent injunction cannot file a petition for temporary injunction against the plaintiff seeking to prevent interference with possession and enjoyment of the suit schedule property.

ORDER :

The question is whether a defendant in a suit for permanent injunction can file a petition under Order XXXIX, Rules 1 and 2 and Section 151 CPC against the plaintiff seeking temporary injunction not to interfere with possession and enjoyment of the suit schedule property.

2. Heard Smt V.Sesha Kumari, learned counsel representing the revision petitioners. Respondent Nos.1 and 3 died. Notices of Respondent Nos. 2,4,5,7 to 10 were returned unserved. Inspite of service of notice on their counsel appearing before the Court below, no appearance has been made. Though, Sri.Maheswara Rao Kunchem, learned counsel filed caveat petition by respondent No.6, there is no representation.

3. This Revision Petition is filed against the order dated 23.01.2023 in C.M.A.No.5 of 2017 on the file of the Court of II Additional District Judge, Kurnool by which petition in I.A.No.1312 of 2015 was allowed reversing the order dated 23.01.2017 in OS.No.147 of 2019 on the file of Senior Civil Judge, Adoni, dismissing the petition under Order XXXIX Rules 1 and 2 and Section 151 CPC filed by defendants against the plaintiff seeking temporary injunction not to interfere with possession and enjoyment of the suit schedule property.

4. Main grievance of the revision petitioners is that an application seeking temporary injunction filed by the defendants against the plaintiffs not to interfering with the possession cannot be filed by them, however, the appellate Court has erroneously granted interim order.

5. For the purpose of clarity, Order XXXIX Rule 1 herein is mentioned below:

“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 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.”

6. As rightly contended by the revision petitioners, a defendant may apply for an interim order if the relief is covered by Rule 1 (a), but not for the reliefs covered by Rules 1(b) or 1(c). Since the relief sought by the defendants is covered by Rule 1(c) but not 1(a), the appellate Court is in error in granting such relief stating that it can be granted under Rule 1, even after referring to the decision of the Division Bench of the High Court of Karnataka in Smt. Shakuntalamma & others Vs Smt.Kanthamma and others, AIR 2015 Kant 13 - ILR 2014 KAR 6025 wherein the clear distinction between Rule 1(a) and Rules 1(b) and 1(c) has been stated as follows:

“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 under Order 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 th