A defendant who has not filed a counterclaim cannot obtain a positive order of interim injunction in his favour under Order XXXIX Rule 1(a) of the Code of Civil Procedure, 1908.

The fundamental question which has arisen in this matter appears to have been lost on both the trial court and the lower appellate court. The legal issue that arises is the circumstances in which a substantive interlocutory application for interim relief may be carried and sustained by the defendants in a suit who have not lodged any counterclaim.

2. In the suit relating to an immovable property over which the plaintiffs claim ownership and in respect whereof the plaintiffs seek a permanent injunction against the defendants, the defendants applied alleging that the plaintiffs were threatening or attempting to dispossess the defendants from the property in question. The trial court was swayed by the allegations made by the defendants and allowed the application by ordering as follows:

“The plaintiffs are hereby directed to restrain the defendants from disposing the suit property till the disposal of the suit.”

3. Apart from the fact that the utter non-application of mind of the judicial officer manning the trial court is evident from the operative part of the order, it does not appear from the 4 or 5 pages of the hand-written order of the trial court that it crossed the mind of the trial judge that it was the defendants’ application that the trial court had entertained and it was the defendants’ application on which an order was being passed. The lower appellate court, remarkably, did not interfere with the order passed by the trial court and referred to two judgments, including one which has been cited by the defendants/opposite parties herein in course of the present proceedings, relating to the futility and impermissibility of undefined orders of status quo being passed by any court.

4. The primary ground urged by the petitioners here is that the defendants, who had not lodged a counterclaim nor had filed any court fees thereon, could not have obtained a positive order of such nature in the defendants’ favour.

5. The defendants first refer to Order XXXIX Rule 1(a) of the Code that, inter alia, provides that the court may issue a temporary injunction when any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit. The opposite parties contend that since Order XXXIX Rule 1(a) of the Code recognizes the right of any party to a suit to obtain an order thereunder, there was no impediment to the defendants in the suit applying for and obtaining the order that has been granted by the trial court and affirmed by the lower appellate court. The argument is completely fallacious and is repelled without any second consideration. Order XXXIX Rule 1(a) of the Code does not apply to the facts of this case. The defendants clearly averred in the application before the trial court that the plaintiffs threatened or intended to remove the defendants from the suit property or dispossess the defendants therefrom. Such a situation is covered by Order XXXIX Rule 1(c) of the Code. The court is empowered to pass an order under Order XXXIX Rule 1(c) of the Code only against a defendant to a suit. However, such an order may be passed in favour of a defendant where the defendant files a counterclaim incorporating a relief in aid whereof a temporary injunction under Order XXXIX Rule 1(c) may be sought.

6. There is good reason for the distinction between Order XXXIX Rule 1(a) and Order XXXIX Rule 1(c) of the Code. A party to a suit may be in enjoyment of a property in dispute in the suit and another party to the suit, even out of sheer cussedness, may seek to damage the property. In such a case, it would be open to any party to the proceedings to obtain an order, not really for the benefit of the party applying therefor, but actually for the benefit of the property which is the subject matter of the suit and to ensure the preservation of the property in its original state during the pendency of the suit. The considerations are otherwise under Order XXXIX Rule 1(c) of the Code.

7. When a specific p