1985 Supreme(MP) 767

IN THE HIGH COURT OF MADHYA PRADESH
RAMPAL SINGH, J.
Jagannath - Applicant
Versus
Prahlad - Non-Applicant
C.R. No. 638 of 1978 (G)
Decided On : 03-12-1985

Headnote:(1) Civil Procedure Code, 1908 – O. 39, R. 1 (a) and 2 – plaintiff's application for temporary injunction under rule 1 (a) – no injunction can be granted in favour of defendant.

       (2) Civil Procedure Code, 1908 – S 151 – temporary injunction in favour of defendant – can be granted exercising inherent powers under – no prayer of defendant is required for the same.

        Short Note

       1. The learned appellate Court, to remove the grievance of the appellant, prepared itself to look into the document with regard to possession, which the trial Court has refused to look into. According to the appellate Court even if the copy of the Khasra is taken to be true. the plaintiff has failed to establish his possession, the reason being that the entry of the name in column No. 12, according to the provisions of the M.P. Land Revenue Code, 1959, contains the name of the trespasser and not the real owner. The possession of the trespasser is meaningleS. To controvert this presumption, the defendant – non – appellants filed in the trial Court the entries of 'Jdmabandi Apashi', according to which defendant No.1 was found to be in possession of the suit land and " as also paying the revenue dues and irrigation due. According to the appellate Court, this possession of defendant No.1 non – applicant bas beep continuing from Samvat 2031 to Sam vat 2032. In the light of the evidence adduced by the defendants, coupled with the report of the commissioner. The appellate Court was of the opinion that there was neither prima focie case, nor balance of convenience, nor irreparable injury to the plaintiff It would be relevant to mention here that the trial Court had passed an injuction in favour of the defendants against the applicant – plaintiff that he shall not disturb the possession of the defendants, and, hence. the appellate Court concluded that the trial Court's order was not at all defective and was, therefore, maintained.

       Held: Shri Swamisaran, learned Counsel for the applicant plaintiff. contended trial no injuction could be passed in favour of the defendants when the application of the plaintiff was under R. 1 (a) Older 39, C.P.C. In support of his contention, be has cited a Single Bench judgment of this Court in Chhitu and others (1981 JLJ 487). This Court in Chhitu's case (supra) held that no temporary injunction in that case could be passed in favour of the defendant according to the provisions of O.39. R. 1 & 2, C.P.C. This Court also maintained that, no doubt, the Courts have power to issue temporary injuction in exercise of the inherent powers, but that power has to be exercised on showing that extra – ordinary circumstances existed necessitating the exercise of that power. There is no dispute with this proposition. Apparently, while rejecting the application of the plaintiff the trial Court as well as appellate Court have passed this order in favour of the defendants exercising the inherent powers under section 151 of the Code of Civil Procedure. There is nothing wrong in granting a suitable relief to the defendant also even if he does not pray for it, but the lower Courts were of opinion that it was the defendants, who were in danger of losing their possession at the hands of the plaintiff. The Hon'ble Supreme Court in Manoharlal Chopra (AIR 1962 SC 527) held that, ordinarily, the Court is not to use Its inherent powers to make necessary orders in the interest of justice, but the Courts are not produced to issue temporary injunction in circumstances. which are covered by the provisions of Order 39, C.P.C, if the Court is of opinion that the interests of justice require to issue such an interim injunction. Keeping in view, the view expressed in Manoharlal Chopra's case (supra), the orders passed by both the Courts below, in my opinion, have been passed under the inherent powers in the interest of justice. and there is no illegally in the exercise of jurisdiction. On facts, Shri Swamisaran, learned counsel for the applicant. extensively contended before this Court, but this Court is not prepared to hear the applicant on concurrent finding of facts. 1981 JLJ 487 distinguished. AIR 1962 SC 527 and AIR 1973 SC 76 relied on. Revision dismissed.