Defendant's entitlement to seek injunction against the plaintiff under Order XXXIX Rule 1 of CPC.

The revision petitioner in both the Civil Revision Petitions, is the plaintiff in a suit for injunction.

2. The suit property admittedly belonged to one Sreedharan Nair who died on 27-8-1990. The plaintiff is the sister of Sreedharan Nair, and the defendant the widow. The plaintiff claims possession over the suit property as having given to her by Sreedharan Nair, and that there was an understanding that the property will be given over to her. The claim is resisted by the defendant on the plea that on the death of Sreedharan Nair, the property devolved upon her being the sole heir and ever since, she is in possession and enjoyment and the plaintiff has no manner of right.

3. In the trial court, the plaintiff filed IA No.878/92 for a temporary injunction. There was IA No.946/92 by the defendant praying for a temporary injunction restraining the plaintiff from trespassing into the property, from altering the nature of the property and from interfering with the peaceful possession and enjoyment by the defendant. The trial court held both applications together and by a common order dismissed the application of the plaintiff and allowed the application of the defendant. The appellate court in CMA Nos. 105/92 and 106/92 dismissed the appeals of the plaintiff. The plaintiff has come up in revision.

4. CRP No.922/94 relates to the application by the defendant, and the other Revision Petition relates to the application by the plaintiff.

5. The main argument advanced by the learned counsel for the revision petitioner is that 0.39 R.1 CPC does not provide for an application for injunction by the defendant against the plaintiff and so, the defendant's application for temporary injunction was incompetent and allowing such an application is illegal and unsustainable. According to learned counsel, the amendment of the C.P.C. in 1976 and insertion of sub-clause (c) to R.1 and also addition to the words "or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit" in the last portion of the rule, make it clear that a defendant in a suit is not entitled to seek injunction against the plaintiff.

6. Rule 1 of Order XXXIX reads as follows"

"Sub-rule (1): Where in any suit it is proved by affidavit or otherwise -

(a) that any property in dispute in a suit is in danger or being wasted, damaged or alienated by any party to the suit, or wrongfully sold or delivered 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 dispossesses 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 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."

7. According to learned counsel, the insertion of Clause (c) actually explains and controls Clauses (a) and (b) and a reading of Clause (c) together with the words in the last portion of the Rule "or dispossession of the plaintiff or otherwise causing any injury to the plaintiff in relation to any property in dispute in the suit" makes it clear that only a plaintiff is entitled to seek for an injunction and not the defendant against the plaintiff.

8. This argument cannot be accepted. Clauses (a), (b) and (c) deal with different situations and they stand independently. Clause (a) deals with the situation where the property in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold or delivered in execution of a decree. Clause (b) deals wit