Defendants have the right to seek injunction under Order 39, Rule 1 (a) of CPC if the property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit.

Anand Pathak, J.

1. This appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellants/defendants against the judgment and decree dated 16-01-2006 passed by learned 8th Additional District Judge Gwalior in Civil Appeal No.37-A/2005 confirming the judgment and decree dated 22-12-2004 passed by learned 8th Civil Judge Class-II, Gwalior in Civil Suit No.42-A/2001.

2. The appeal has been admitted by this Court vide order dated 17-04-2013 on the substantial questions of law. Since then the appeal is pending consideration for final hearing.

3. The respondents/plaintiffs have filed a suit for declaration and injunction against the appellants/defendants in respect of the suit property as mentioned in the appeal memo. The respondents/plaintiffs have recently started some construction over the disputed site, therefore, the appellants/defendants had move an application (I.A.No.2399/2016) under Order 39, Rule 1 and 2 read with Section 151 of CPC seeking the injunctions against the respondents/plaintiffs. The respondents/plaintiffs filed reply to the said application and while contesting the claim of appellants/defendants raised the legal question regarding maintainability of the application preferred by the defendants. According to the counsel for the respondents /defendants, the 2 S.A.No.365/2006 appellants/defendants had no right to move an application for injunction under Order 39, Rule 1 and 2 of CPC because the injunction is always available to the plaintiffs and the defendants cannot seek any injunction. The plaintiffs also submitted that renovation work of the residential area over the disputed site has already been completed and annexed the photographs in this regard.

4. Now the moot question for consideration of this injunction application (I.A.No.2399/2016) is whether the defendants have any legal right available to move an application under Order 39, Rule 1 and 2 of CPC or not.

5. Learned counsel for the appellants/defendants submitted that the defendants can claim injunction as per the provisions of Order 39, Rule 1 and 2 of CPC because here in the present case the defendants are not seeking any injunction regarding dispossession but against the construction of house by the plaintiffs and therefore, he is entitled to seek injunction in respect of property if nature of the property is attempted to be changed by the plaintiffs through damage or alienation. The appellants/defendants relied upon the judgment rendered by the Division Bench of this Court in the matter of Churamani and another v. Ramadhar and others 1991 MPLJ 311.

6. On the other hand, learned counsel for the respondents/plaintiffs vehemently argued that the defendants have no right to seek injunction in the present case because the provisions of Order 39, Rule 1 and 2 of CPC do not mandate so. According to 3 S.A.No.365/2006 the respondents/plaintiffs, the said remedy is only available to the plaintiffs and defendants cannot invoke it. Similarly, the respondents/plaintiffs have further averred that the construction of house has already been completed by the plaintiffs till now. Therefore, no injunction can be granted.

7. Learned counsel for the respondents/plaintiffs relied upon the judgments rendered in the case of Chhitoo and others v. Sakharam and others, 1981 JLJ 487, Sushila Singh (Smt.) v. Vijay Shanker Shukul, 1980 JLJ 496 and Ram Narayan Singh v. Rikhraj Singh, 1997 MPWN 34.

8. Heard learned counsel for the parties on the application under Order 39, Rule 1 and 2 of CPC (I.A.No.2399/2016) and with their assistance perused the record.

9. The moot question in controversy is scope of seeking injunction by the defendants under the provisions of Order 39, Rule 1 and 2 of CPC. Before adverting to the controversy it is imperative to discuss the legal provisions in this regard. The Order 39 of CPC deals in respect of temporary injunction and interlocutory orders. Order 39, Rule 1 and 2 of CPC reads as under:

“1. Cases in which tempora