1996 Supreme(MP) 1134

IN THE HIGH COURT OF MADHYA PRADESH
S.S. Jha, J.
Ram Narayan Singh – Petitioner
Versus
Rikhraj Singh – Respondent
C.R. No. 919 of 1994 (J)
Decided On : 30-08-1996

Headnote:Civil Procedure Code, 1908 – O. 39 R. 1 and 2 and proviso (as inserted in M.P.) – temporary injunction as to possession – cannot be granted in favour of defendant – he has no locus standi to make such application.

        Short Note

       1. The brief facts are that a suit for partition and possession in respect of suit land and other movable properties was filed by the plaintiff. In the suit for partition, filed by the plaintiff, an application for injunction was filed by the defendants. The trial Court granted injunction relying upon the decision of this Court reported in 1981 JLJ 515 (Anil Kumar v. Kashinath), held that injunction can be granted to the defendants and injunction was granted. The lower appellate Court modified the order of injunction in respect of Khasra No. 133 and 134 and affirmed the order of injunction in respect of other lands.

       2. The applicant has raised a preliminary objection and submitted that the trial Court was not empowered to grant injunction to the defendant. A specific objection was raised by the plaintiff that the application of defendant for grant of injunction is not maintainable. Secondly in a co – parcenary property, no injunction can be granted against any co – owner for enjoyment of his property.

       3. The learned counsel for the applicant has drawn my attention to the Madhya Pradesh amendment in the proviso in sub – rule (2) of Order 39 Rule 2 of the Code of Civil Procedure. To understand the provision, the proviso is re – produced below:

       "The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit."

       (a) where no perpetual injunction could be granted in view of the provisions of section 38 and section 41 of the Specific Relief Act, 1963 (No. 47 of 1963); or

       (b) to stay any operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge• from any person appointed to public service and post in connection with the affairs of the State including any employee of any Company or Corporation owned or controlled by the State Government; or

       (c) to stay any disciplinary proceeding pending or intended or, the effect of any adverse entry against any person appointed to public service and post in connection with the affairs of the State including any employee of the Company owned or controlled by the State Govt., or

       (d) to restrain any election; or

       (e) to restrain any auction intended to be made or, to restrain the effect of any auction made by the Government; or to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished."

       Any order for injunction granted in contravention of these provisions shall be void.”

       4. The learned counsel has drawn the attention of the Court to the proviso (a) and submitted that no injunction can be granted where no perpetual injunction could be granted, in view of section 38 and section 41 of the Specific Relief Act, 1963. Section 38 of the Specific Relief Act relates to grant of perpetual injunction.

       Held: The learned counsel for the applicant submitted that section 38 relates to grant of injunction in favour of plaintiff and not in favour of defendant. Learned counsel submitted that the aforesaid Anil Kumar's judgment (supra) is not applicable to the instant case because State amendment came to force in the year 1984 and as such the trial Court ought to have considered the scope of proviso (a) as amended in the year 1984.He submitted that this question was considered by this Court in the case of Sushila Singh v. Vijay Shankar Shukal, reported in 1990 JLJ 496. In this case an application for temporary injunction was filed by the defendant and it was held that temporary injunction cannot be granted at the instance of the defendant. The learned Single Judge relied upon the earlier judgment of this Court in the case of Mohd. Hafiz Khan v. Smt. Neziban Bibi and another, reported in 1973 MPLJ Note 14 and Chhitto and others v. Sakharam and other, reported in 1981 JLJ 487 and held that the defendants right to maintain an application is confined to those cases where the property in dispute is in danger 'of being wasted, damaged or alienated or wrongfully" sold in execution of a decree.' Rule 2 Order 39 cannot be pressed into service since an injunction against interference with possession, can be claimed only by a plaintiff in the suit for restraining the defendant' 'from committing breach of contract or other injury of any kind." In this case, the defendant has claimed injunction against interference of his possession. The intention of section 38 (3) of the Specific Relief Act also provides that when the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant perpetual injunction. The only question raised by the learned counsel is that at the instance of the defendant, no injunction could be granted. I find force in the argument of the learned counsel for the applicant and as it has been held in the case of Sushila Singh (supra) and looking at the provision of proviso (a) of Order 39 Rule 2 (2) of the Code of Civil Procedure, application for interim injunction could only be moved by the plaintiff. Since no perpetual injunction could be granted to the defendant, in this case, the Court below had no jurisdiction to grant temporary injunction. Thus, the Courts below have exercised the jurisdiction not vested with it while granting the injunction to the defendant, as such the revision deserves to be allowed. 1981 JLJ 515 distinguished. 1990 JLJ 496 and 1981 JLJ 487 relied on.