1990 Supreme(MP) 142

S. D. Jha, J.
Mungawali v. Zubedabi.
S. A. No. 174 of 1988 (I); Decided on 8-3-1990.

Headnote:Civil P. C., 1908 - O. 39, Rr. 1 and 2 - suit for partition-mere apprehension that complication may arise in final decree-not sufficient to grant Injunction.

       flfoy izfdz;k lafgrk] 1908&vk- 39 fu- 1 ,oa 2&foHkktu gsrq okn&ek= ;g vk‘kadk fd vafre fMdzh esa tfVyrk,¡ mRiUu gksxh&Okns‘k iznku djus dh i;kZIr ugha gSA

       

        In the application for temporary in injunction presented under O. 39, rule 1 and 2 of the C.P.C. it is urged that the appellants are in possession of rooms and land admeasuring 43 ½ of the East-west 70 North-south in front of of four rooms. Preliminary decree has been passed, final decree is yet to be passed. The appellants in spite of decree taking advantage of their possession have started now construction, by surrounding whole of the open land from the front so that no one may be able to go there where they are making the construction on open land. They have severally dug foundation for the purpose and after preliminary decree of partition has been passed, they have no right to indulge in any construction. The construction would put further obstruction in the way of partitioning the property. It is also stated that there is already a case of dis-obedience of order of injunction passed against them. The application goes on to say that this respondent No.1 would suffer irreparable loss and injury, if the appellants are not immediately restrained from making the new construction and that the loss cannot be compensated in terms of money. Mohd. Irfan respondent No. 19 in this appeal has sworn an affidavit in support of the application.

        Held :The present is not a suit for injunction. In Jamnabais case (1957 JLJ 914) a Division Bench of this Court held as under :-

        "The suit is not one to Obtain an injunction and on this short ground the plaintiffs application cannot be considered under O. 39, R. 2, S. 151 CPC also cannot be invoked as there is express provision in the Code to dell with the matter This plaintiffs application cannot be considered only under O. 39, rule 1 of the CPC."

        In para 9 this Court approved the view taken by the Calcutta High Court in Man Mohinee Dasse v. Ichamovee Dosses, [13 Sutherlands Weekly Reporter (Civil Rulings) 60] that was also a suit for partition of property in which there was a prayer made for issuing a temporary injunction. The injunction was issued to restrain the defendant from alienating property pendente lite. In appeal filed by the defendant the High Court vacated the injunction order and held that;

        "The power of issuing injunction and appointing receiver pendente lite, which is given by the Civil Procedure Code, ought to be most cautiously exercised. It is only in cases where property which it is essential should be kept in its existing condition during the pendency of the suit, is in danger of being destroyed damaged, or put beyond the power of the Court, that the Court ought to interfere so as to restrain persons who may turn out in the final event of the litigation to be the actual owners of the property from proper enjoyment and possession of it."

        In the instant case, none of the conditions prescribed under O. 39, rule 1 justifying grant of injunction against appellants are fulfilled. Mere apprehension that complications might arise in final decree proceedings and partition by the respondent No.1, who has been found to be having 7/356 share in the property, in view of the foregoing would not justify grant of injunction.

        1957 JLJ 914 relied on. AIR 1971 Cal. 264 and AIR 1976 Cal. 277 referred to. Application dismissed.