Hon’ble Anil Kumar, J.—Heard Shri A. R. Khan, learned counsel for the petitioner,ýÿ Shri P. V. Chaudhary, learned counsel for the respondent as well as learned State Counsel and perused the record.

2. Facts in brief of the present case are thatýÿ initially theýÿ plaintiff/petitioner filed a regular suit bearing Suit No. 598 of 2001 before the Civil Judge (Junior Division), District-Pratapgarh for permanent injunction.

In the said matter, he moved an application under order XXXIX Rule 1 and 2 C.P.C. for grant of temporary injunction, allowed by the trial Court by order dated 10.4.2001.

Aggrieved by the said facts, respondent filed an appeal bearing Appeal No. 16/01 “Mohd. Safik v. Mohd. Zamil”, allowed by judgment and order dated 10.10.2002 (Annexure 1) and the temporary injunction granted by the trial Court has been vacated. Aggrieved by the said facts, the present writ petition has been filed before this Court.

3. On 15.11.2002, this Court has passed an interim order, the relevant portion is reproduced herein below :

“Till further orders of this Court, the operation and enforcement of the impugned order dated 10.10.2002 shall remain stayed.”

4. In order to decide the controversy involved in the present case, it will be appropriate to state the aims and objects in respect of grant of temporary injunction by the Courts while exercising the power under Order XXXIX Ruleýÿ 1 and 2 C.P.C.

Rule 1 of Order XXXIX lays down three circumstances where the Court may grant temporary or interim injunction if the circumstances and facts are proved by affidavit or otherwise.

Firstly, where the disputed property is in danger of being wasted, damaged or alienated by any party to the suit or from being fully sold in the execution of a decree;

Secondly where the defendant threatens or intends to remove or dispose of his property with an intention to defraud his creditor;

Thirdly where the defendant threatens to dispossess the plaintiff in relation to the disputed property.

On proof of these on affidavits, the Court may pass an order restraining or forbearing the defendant from doing such act of wasting, damaging, alienating, sale, removal or dispossession of the property or restrain the defendant from dispossession the plaintiff from the suit property or causing injury to the plaintiff in relation to the disputed property.

5. Similarly, under Rule 2 of Order XXXIX, the Court may, by an order of temporary or interim injunction, restrain the defendant from committing breach of contract or injury complained of arising out of the same contract. However, while exercising the power under Rule 2, the Court must bear in mind that in case where the performance of a contract is not specifically enforced, damages for such breach would be the proper and adequate relief. Then in such cases injunction may not be granted. The Courts must also bear in mind the provisions of Section 41, particularly clause (e) of the Specific Relief Act, while exercising the power under Rule 2 of the Order XXXIX of the Code. According to this Section, the perpetual injunction could not be granted to restrain the breach of a contract, then in such cases the Court may refuse to grant temporary injunction.

6. The principle upon which the jurisdiction can be exercised has been discussed by the author in the book “Kerr on Injunctions”. The relevant portion is quoted herein below : (at pages 410 and 411- Sixth Edition)

“The Jurisdiction of the Court by way of interlocutory injunction against breach of covenant or contract being in aid of the legal right, and having for its object the protection of the property from irreparable damage pending the trial of the right, a man who seeks the aid of the Court must be able to show a good prima facie legal title to the right which he asserts. If the right at law under the covenant is clear or fairly made out, and the breach of it is clear or fairly made out, and serious injury is likely to arise from the breach, it is the duty of the Cou