Nanasaheb s/o Sakharam Bhalekar vs Dattu s/o. Dhondiba Bhalekar & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1990 Supreme(Bom) 509

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonker, J.
Nanasaheb s/o Sakharam Bhalekar... Petitioner.
Versus
Dattu s/o. Dhondiba Bhalekar others... Respondents.
Civil Revision Application No. 877 of 1990, decided on 19-12-1990.
Advocate appeared :
P.F. Patni, for petitioner.
S.A. Kulkarni, for respondent.

Headnote:Order 9. R 1-Prayer of defendant to grant injunction against plaintiff from obstruction in employment of suit well-When such injunction can be granted in favour of defendant.
       Held,-In respect of situation covered by O. 39 R. 1 clause (a), injunction can be granted in favour of either of parties viz. plaintiff or defendant, whereas in respect of situations covered by clauses (b) and (c), injunction can be granted only in favour of plaintiff and not defendant.
       Order 39, Rules 1 and 2-Suit for temporary injunction filed by plaintiff to restrain defendants from obstructing his enjoyment of well water to the extent of share purchased by him-Whether defendant in such a suit can be granted Injunction restraining plaintiff from obstructing his alleged possession and of property.
       Held-In instant case by defendant was in respect of his enjoyment of well water Circumstance covered by Clause (c) of Rule 1 and not by Clause (a) and (b) of Rule 1. Defendant can not be granted injunction in such a suit.
       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 framing this rule by authorising in respect of the situations listed in clause (a) of Rule 1 on one hand and clauses (b) and (c) of Rules 1 and Rule 2 on the other hand. In respect of situations covered by the first clause, injunction 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.
       Had it been the intention of the Legislature in framing such a rule that either of the parties could be granted a temporary injunction for the purposes mentioned in all of these clauses, there was no occasion to expressly use the term defendant as the author of the misChief could be prevented, particularly when in clause (a) of Rule 1 there is no such mention of defendant. Therefore, purposefully the ambit of-cause (a) of Rule 1 was kept wider than the ambit of clauses (b) and (c) of Rule 1 and provisions of Rule 2. The intention appears to be to restrict the power of grant of injunction in the circumstances mentioned in later clauses in favour of the plaintiff only. The difference between the circumstances under Clause (a) and other clauses of Rule 1 is distinctive and important the purpose of any interim relief is always to maintain the status quo in respect of the subject-matter and the suit so as to enable the Court to pass a fruitful decree after the hearing is completed. Therefore , waste, damage or alienation of the property by any party will result into disturbance in the status quo of the property and, therefore, even when an injunction is granted in favour of the defendant, it is really to protect the present state of the property in dispute and, therefore, from this angle can be considered to be an injunction in favour of the plaintiff, if he IS honestly interested in getting the decree of protection of the property as it is on the day of the filing of the suit.
       Injunctions in respect of disposal or removal of the property and particularly the injunctions in respect of protection of the possession are totally on different footing. Plaintiff comes to the Court for protection of his possession and enjoyment of the property. If the apprehended misChief by the defendant is proved prima facie, injunction is granted in his favour. If final relief cannot b: granted in favour of a party, normally no question would arise to grant an interim relief in favour of that party so far as possession and enjoyment of property is concerned. It is in this view the Legislature must have made a distinction between the persons entitled for relief under these different provisions. If the Legislature omits to grant a power to the Court in respect of a party and grants power in respect of other party, then it will have to be presumed that the exercise of the power in respect of the first party is barred by Implication,

JUDGMENT - N.P. CHAPALGAONKER, J.:---A question of general importance has been raised in this revision application as to whether a defendant in a suit for injunction filed by the plaintiff can be granted injunction restraining the plaintiff from obstructing his alleged possession and enjoyment of the property.

2. It is the case of plaintiff that he has purchased 2 Acres area out of Block No. 196 which in all measured 16 Acres and 28 Gunthas situated at village Nipani, Taluka District Aurangabad, from defendant No. 5 under a registered sale-deed dated 5-9-1986. Along with this land he has purchased half share in the water of the well located in the land purchased by the plaintiff. It is his case that the defendant Nos. 1 to 4 have no share in the well and since they are obstructing plaintiff's right to get the water from the said well, he was constrained to file the suit for perpetual injunction. He applied for a temporary injunction restraining the defendants from obstructing plaintiff's enjoyment of the well water to the extent of the share purchased by him. Ad interim injunction was granted ex parte in favour of the plaintiff which came to be vacated later on and a Misc. Appeal arising therefrom was also dismissed by the Addl. District Judge, Aurangabad, on 21-8-1987. On 6-12-1989, defendant Dattu, submitted an application praying for a temporary injunction restraining the plaintiff from disturbing peaceful enjoyment of the defendant in the suit well. On 22-12-1989, learned Jt. Civil Judge (J.D.), Aurangabad, directed the parties to maintain status quo and on 23-1-1990 he was pleased to grant the prayer of the defendant and clamped an injunction against the plaintiff restraining him from disturbing peaceful possession and enjoyment in the suit well till the disposal of the suit. Misc. Civil Appeal No. 18/1990 filed by the plaintiff in the District Court also came to be dismissed by the IIIrd District Judge, Aurangabad, on 8-6-1990. This order is being challenged in this revision application.

3. Shri. P.F. Patni, learned Counsel appearing for petitioner, submitted that the defendant No. 1 Dattu does not own any share in the well or in the land purchased by the plaintiff in which the well situates. Therefore, both the courts below erred in granting an injunction in favour of defendant when he cannot be said to be in lawful possession of the property, the enjoyment of which is alleged to be obstructed. He further submitted that in a suit for injunction filed by the plaintiff, the Court had no jurisdiction to grant injunction in favour of the defendant restraining plaintiff from obstu;cting the alleged possession and enjoyment of the defendant of the same property. Shri Patni submits that Order 39, Rules 1 and 2 of the Code authorized Civil Court to grant an injunction in favour of the plaintiff only and injunction in favour of the defendant can be granted only in respect of the circumstances listed in Order 39, Rule 1(a). Injunction prayed for by the defendants is not to prevent waste, damage or alienation and, therefore, orders of both the courts below are without jurisdiction and need to be quashed.

4. Shri S.A. Kulkarni, learned Counsel appearing on behalf of the respondent, submitted that an injunction can be granted in favour of the defendant even when the case is not covered by provision of Order 39 of the Code. In this respect, he further submitted that the provisions under section 94 and section 151 of the Code of Civil Procedure, 1908, invest sufficient powers to the Court to grant an injunction in favour of the defendant.

5. Relevant part of provisions of section 94 of the Code is reproduced below:-

"94. In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, -

(a) ........

(b) ........

(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."

It is the submission of Shri Patni

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