The court can exercise its power for grant of temporary injunction under Section 94(c) of the CPC in a circumstance where the dismissed suit was not restored, and there was no prohibition under the law for the court to do so.

JUDGMENT

Achintya Malla Bujor Barua, J. - Heard Dr. PK Goswami, learned Counsel for the petitioner.

2. Considering the nature of the order to be passed, we deem it appropriate that notices on the respondents may not be issued.

3. The petitioner instituted Title Suit No.369 of 2010 in the Court of learned Munsiff No.2, Kamrup (M), at Guwahati claiming for right, title and interest over the suit land. The said suit was dismissed for non-prosecution by an order dated 16.11.2019. Although there was a counter claim, even the counter claimant had not come forward before the Court to pursue with his counter claim after dismissal of the suit for non-prosecution. Upon dismissal of the suit for non-prosecution, the defendants counter claimants are stated to have encroached upon the suit land. In the circumstance, the petition No.2965 was filed by the petitioner under Order 39 Rule 1 and 2 praying for an ad-interim temporary injunction restraining the defendants counter claimant from entering the suit land. The petition of the petitioner plaintiff under Order 39 Rule 1 and 2 was dismissed by the order dated 21.12.2019 on the ground that the restoration petition against the dismissal of the suit having still pending, no relief can be granted by passing an order of injunction.

4. We have perused the provisions of Order 39 Rule 1 which provides that where in any suit it is proved by an affidavit or otherwise, that the defendant threatened to dispossess the plaintiff or otherwise caused injury to the plaintiff in respect of the suit property, the court may by order grant a temporary injunction to restrain such acts. A bare reading of the provision of Order 39 Rule 1 shows that in order to invoke such power for grant of temporary injunction, the pre-requisite would be the pendency of the suit as because such order can be passed only where in any suit it is provided by an affidavit or otherwise. Consequent to our aforesaid reading of the provision of order 39 Rule 1, we find no infirmity in the order dated 21.12.2019 of the learned Court of Munsiff No.2, Kamrup in Petition No.2965 which was filed under Order 39 Rule 1 and 2.

5. Dr. PK Goswami, learned Counsel relies upon the pronouncement of a judgment of this Court in the case of Reboti Ray vs- Sashikanta Budhia @ Agarwal, (2006) 2 GauLT 311 , wherein in paragraph- 23, it had been held that the inherent jurisdiction of a court to issue temporary injunction which are not covered by Order 39 still remains under Section 94 of the CPC inasmuch, as Section 94 CPC does not completely prohibit the grant of temporary injunction in the circumstance which are otherwise not covered by order 39 and the rules framed thereunder. In the instant case, although the petitioner made their application under Order 39 Rule 1 and 2, in a circumstance where the dismissed suit was not restored, there was no prohibition under the law for the Court to exercise its power for grant of temporary injunction under Section 94(c) of the CPC.

6. We are faced with a situation where the suit of the petitioner was dismissed on 16.11.2019 and a petition for restoration is pending wherein notices have been issued but have not yet been served and therefore the said petition is pending consideration. In the meantime, it is stated that the defendants taking advantage of the dismissal of the suit is attempting to dispossess the plaintiff from the suit land. Although a subsequent attempt to dispossess may give rise to a new cause of action, we leave it to the petitioner to address the said issue and take remedial measure in an appropriate manner, as may be provided under the law. But for the case at hand, we are of the view that if the defendants taking advantage of the dismissal of the suit and the non-consideration of the application for restoration because of the procedural requirement, is making attempts to dispossess the plaintiff, we are of the view that it would be a fit case for exercising the jurisdiction under Section 151 CPC b