A defendant in a suit for injunction can maintain a counterclaim seeking an injunction over a different property if he establishes a prima facie case, balance of convenience, and likelihood of irreparable injury.

ORDER :

1. The petitioner is before this Court calling in question an order of the First Appellate Court, which confirms the order of grant of an injunction under Order XXXIX Rules 1 and 2 of the CPC in favour of the defendant.

2. Heard the learned counsel Sri.Kantharajappa M.G., appearing for the petitioners and the learned counsel Sri.K.Murthy, appearing for respondent No.1.

3. Facts in brief, germane, are as follows:

A suit for injunction is instituted by the petitioners in O.S.No.495/2022, in which, a counterclaim is also registered. The suit, in which, the petitioner institutes, an application is filed under Order XXXIX Rules 1 and 2 of the CPC, which is not granted. The defendant also had filed identical application in the counterclaim that was so registered. Qua the counterclaim schedule property, injunction was granted. This is challenged by the petitioners-plaintiffs before the First Appellate Court. the First Appellate Court rejects the same.

4. Learned counsel appearing for the petitioners is before the Court calling in question the order of the Trial Court and that of the First Appellate Court granting injunction in favour of defendant qua the suit schedule property.

5. Learned counsel appearing for the petitioners seeks to place reliance upon the judgement of the Division Bench in the case of Smt. Shankunthalamma and Others Vs. Smt. Kanthamma and Others , ILR 2014 Kar 6025 to buttress his submission that a defendant cannot maintain an application under Order XXXIX Rules 1 and 2 of the CPC against the plaintiffs and would submit that the order of grant of injunction and its confirmation both are contrary to law.

6. Learned counsel appearing for the respondents would submit that respondents had preferred a counterclaim qua the counterclaim schedule property injunction is granted, they are entirely different. Therefore, the petitioners as is projecting a ground that is a very big ground to maintain the subject petition.

7. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.

8. The afore-narrated facts are not in dispute. In the suit, the application filed by the plaintiff under Order XXXIX Rules 1 and 2 of the CPC is not granted, but the injunction is granted qua the counterclaim schedule property. The order of the concerned Court granting relief in favour of the counterclaim schedule property reads as follows:

COUNTER CLAIM SCHEDULE

Vacant site property bearing panchayath katha and assessment No. 183, East-West 19.80 meters and North-South 23 meters, total measuring 455.40 meters, situated at Muddapura village, Turuvanuru Hobli, Chitradurga Taluk and District, bounded as under:

East by : Property of L.K.Manjunatha

West by : Property of L.K Shivakumara

North by : Property of L.K.Rajanna (defendant No.1)

South by : Property of Gowdru Basappa

2. In the affidavit filed along with the I.A.No.5, defendant No.1 submits that, he has filed counter claim in the present case and that, he is lawful owner in possession of the counter claim property and that, the counter claim schedule property is ancestral property of defendant's family and the same was partitioned as per partition deed dated: 12.07.2017 and the counter claim schedule property was allotted to his share. It is submitted that, the plaintiff is not having any legal right, title or possession over the counter claim schedule property and is not having any relationship with defendant No.1 and his family members and he is causing interference with the possession and enjoyment of the defendant No:1 over the counter claim schedule property. Hence, the present application is filed. Wit