The provisions of Order 8, Rule 9, C. P. C., which permit subsequent pleadings by leave of the Court, can be applied to an application for temporary injunction under Order 39, Rules 1 and 2, C. P. C., by virtue of Section 141, C. P. C.

N. M. KASLIWAL, J.

( 1 ) ORDER :- In both the above civil revisions identical questions of law arise as such they are disposed of by one single order.

( 2 ) IN both the cases the plaintiffs filed a suit for permanent injunction and along with the suit filed an application for temporary injunction under O. 39, R. 1 and 2, C. P. C. The defendants filed a reply to the application for temporary injunction and thereafter the plaintiff filed a rejoinder under O. 8, R. 9 read with S. 141, C. P. C. The learned trial Court held that O. 8, R. 9 can apply where suit is filed and after filing the written statement the plaintiff wants to file subsequent pleadings. It was further held by the trial Court that the provisions of O. 8, R 9 did not apply in respect of an application filed for temporary injunction. It was also observed by the trial Court that the provisions of S. 141, C. P. C. read with O. 8, R. 9 C. P. C. also did not permit the plaintiff to file a rejoinder in case of an application for temporary injunction filed under O. 39, Rr. 1 and 2 C. P. C.

( 3 ) AGGRIEVED against the order of the trial Court, these revisions have been filed by the plaintiffs.

( 4 ) IT was contended by learned counsel for the plaintiffs that under the provisions of S. 141, C. P. C. the procedure provided in the Code of Civil Procedure in regard to the suit has to be followed as far as it can be made applicable in all proceedings in any Court of Civil jurisdiction. It is submitted that the proceedings under O. 39, Rr. 1 and 2 being miscellaneous proceedings, the procedure provided in the C. P. C. in regard to suits should be followed to miscellaneous proceedings. It is further argued that in a suit for permanent injunction the scope of the suit as well as the application for temporary injunction remains almost identical. The Court is entitled to consider the pleadings contained in the plaint for deciding the questions of prima facie case, balance of convenience and irreparable loss for disposing of the application for temporary injunction. That being so, if the plaintiff can file subsequent pleadings under O. 8, R. 9 in respect of the main suit there can be no valid reason to disallow the plaintiff to file a rejoinder to the reply filed by the defendant of the application for temporary injunction. It is further argued that any order passed in miscellaneous proceedings of temporary injunction some times decides the very suit for permanent injunction and as such if any new plea or facts are introduced by the defendant in reply to the application for temporary injunction, it becomes very necessary for the plaintiff to clarity and explain the same by way of rejoinder. Thus in order to do real justice between the parties and to find out the truth it is necessary to permit the plaintiff to explain the new pleas taken by the defendant in the reply.

( 5 ) ON the other hand learned counsel for the defendants submitted that the provisions of S. 141 can only apply in case of original proceedings. It is submitted that proceeding for temporary injunction are not original proceedings and as such no rejoinder can be permitted in such proceedings, It is further argued that in the explanation to S. 141 only proceedings under O. IX have been included and this shows the intention of the legislature not to include any proceedings other than those contained in O. IX.

( 6 ) IN order to appreciate the arguments advanced in the case by learned counsel for both the parties and to decide the legal controversy raised in these cases, it would be necessary to reproduce S. 141 and O. 8, R. 9, C. P. C. Section 141 :- miscellaneous proceedings :- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. Explanation :- In this Section, the expression "proceedings" includes proceedings under Order IX but does not include any proceeding under Art. 226 of the Constitution.