The court held that Order 39, Rule 1, Civil Procedure Code, as amended, barred the grant of a temporary injunction to restrain the defendant from proceeding with the House Rent Control case, as it would contravene the provisions of Section 56 of the Specific Relief Act.

JUDGMENT :- The plaintiff in an action for specific performance of a contract is the appellant aggrieved by an order dated 31-10-1969 of the learned Subordinate Judge of Cuttack in refusing to restrain the respondent from proceeding with an action for eviction under the House Rent Control Act.

2. The respondent is the purchaser of a house located in the town of Cuttack. The appellant alleges that there was a contract in his favour by the admitted owner of the property for sale. As there has been breach of that contract, he has instituted a suit for specific performance of contract in T. S. No. 15 of 1969. The said suit is pending trial. Before the suit was instituted, the defendant-respondent initiated an action under the House Rent Control Act for eviction of the plaintiff-appellant who is admittedly in possession of the premises. According to the plaintiff, he was previously a tenant, but ever since the contract he has been living in the house as the owner. The sale deed, however, has not been executed and he has filed the suit for the same.

3. Pending disposal of the suit the plaintiff-appellant applied for injunction under Order 39, Rule 1 read with Section 151, Civil Procedure Code for restraining defendant No. 1 (respondent) from proceeding with the House Rent Control case. The learned Trial Judge by the impugned order rejected the same holding that the application was not maintainable under the provisions of Order 39, Rule 1, Civil Procedure Code as amended by this Court.

4. Order 39, Rule 1, Civil Procedure Code provides,

"Where in any suit it is proved by affidavit or otherwise -

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such Other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.

By amendment the following has been added :-

Provided that no such temporary injunction shall be granted if it would contravene the provisions of Section 56 of the Specific Relief Act...... ."

The learned trial Judge has taken the stand that in view of the provisions of the Specific Relief Act a party cannot be restrained from proceeding with a judicial action in a forum not subordinate to that court. In view of the restriction imposed by the proviso added in this Court, the bar under the Specific Relief Act is attracted to the rule. That apart in terms, Order 39, Rule 1, Civil Procedure Code does not appear to cover the present case.

5. Rule 2 may not strictly apply as the breach alleged has already been committed and it would be difficult to hold that to allow the House Rent Control proceeding to continue would be an injury of a kind contemplated under Rule 2 (1) of Order 39, Civil Procedure Code.

6. Mr. Misra for the appellant contended that if Order 39, Civil Procedure Code does not provide remedy for such contingency, the provisions contained in Section 151, Civil Procedure Code would certainly be attracted as was indicated by their Lordships of the Supreme Court in AIR 1962 SC 527, Manohar Lal v. Hiralal. His next contention is that the ultimate point for adjudication in the suit as also the proceeding would be about the genuineness of the agreement. The defence of the appellant in the House Rent Control proceeding is that he was no more a tenant and, therefore, the House Rent Control Act has no application to him. The genuineness and legality of the contract which is asked to be specifically enforced is certainly the main thing in the title suit.

According to him, if both the matters are allowed to proceed independently of each other, apart from multifariousness of