P.K. Tare, C.J .- 1. A learned Single Judge of this Court, differing from the view taken by one of us, namely, S.M.N. Raina, J. in State of M.P. V. Caltex (India) Ltd. & 2 others, 1969 JLJ SN 101, has referred the following two questions for the opinion of a larger Bench :-

(1) Where the period of notice under section 80 of the Code of Civil Procedure has not expired, can an intending plaintiff file a substantive application under section 151 C.P.C., simpliciter, praying for grant of a temporary injunction to maintain status quo until be is able to institute the suit?

(2) Can the Court, acting on such an application, grant the temporary injunction prayed for having resort to section 151 of the Code.

2. The reference made by the learned Single Judge arises on the following facts. A plot of land situated within the Municipal limits of Lashkar Gwalior, was allotted to the applicant by the Collector, Gwalior. The petitioner intends to construct a house on the plot after obtaining the sanction of the Commissioner, Municipal Corporation, Gwalior. The grievance of the first respondent, Chironjilal was that the said plot included within its area a part of the Public road so that the allotment in favour of the petitioner could not have been validly made and consequently the petitioner was not entitled to construct a house on that area. The first respondent is a business man owning motor cars and tempoes and his allegation is that in consequence of the aforesaid construction, he would be greatly in convenienced by the narrowing of the public road, since his house is located nearby. The first respondent, therefore, intended to file a civil suit against the petitioner and respondents 2 and 3 consequently, he served a notice under S. 80, C.P.C. on the Collector and under S. 401 of the Municipal Corporation Act, 1956, on the Commissioner of the Municipal Corporation, Gwalior, on 6-4-1972, stating his intention to file a suit against the proposed defendants and claiming the reliefs, including one of injunction. On 11.4.1972, the first respondent, Chirongilal filed an application under S. 151, C.P.C. simpliciter, describing it as a Miscellaneous civil case in the Court of 5th Civil Judge Class II, Gwalior, impleading the petitioner and respondents 2 and 3 as opposite party and praying for the issue of a temporary injunction restraining construction of a house on the area of the plot, which according to him, was as a part of the public road. The explanation for resorting to this unusual course as given in the application was that the period of notice under S. 80 C.P.C. and S. 401 of the M. P. Municipal Corporation Act, 1956, not having expired, no suit could be filed before the expiry of the period prescribed by the said sections and since the matter was of great urgency in view of the proposed construction to be raised by the petitioner, the application was being filed for claiming a temporary injunction to maintain the status quo till the intended suit was filed and a temporary injunction was obtained from the civil Court. The first respondent also annexed to that application under S. 151, C.P.C. a copy of the proposed plaint and also asserted that the proposed suit would be filed after the expiry of the period of notice.

3. The trial Judge, acting on the said application, under S. 151 C.P.C. granted a temporary injunction as prayed for be order, dated 28-4-1972, and that injunction is still in force, At the time the injunction was granted, there was no suit pending and consequently. Order 39, rule 1, C.P.C. or Order 39, rule 2, C.P.C. was in applicable in terms. Aggrieved by the temporary injunction, one of the defendants filed the present revision.

4. On behalf of the petitioner, it was argued that the Court had no jurisdiction to entertain such an application, which was not in a pending case and consequently, the Court had no jurisdiction to issue a temporary injunction in exercise of inherent powers.

5. On behalf of the first respondent