Joint owners cannot seek an injunction against each other; equitable relief must consider the rights of all parties involved.

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The present appeal is filed by the defendant Nos.11 to 15 challenging the order dated 16.02.2022 passed on I.A No.V filed under Order 39 Rule 1 and 2 R/w Section 151 of the Code of Civil Procedure , 1908 (Hereinafter referred to as the ‘CPC’), in O.S No.403/2019 by the III Additional Senior Civil Judge & JMFC, Hubballi (Hereinafter referred to as the ‘Trial Court’).

2. The relevant facts in brief leading to the present appeal are that the respondent No.1/plaintiff instituted a suit in O.S No.403/2019 seeking for partition, claiming 1/5th share in the suit properties and for other reliefs. The said suit was contested by the defendants. The defendant Nos.11 to 15 filed I.A No.IV under Order 39 Rule 1 and 2 R/w Section 151 of the CPC to restrain the defendants and plaintiffs from alienating the suit properties and I.A No.V is also filed under Order 39 Rule 1 and 2 R/w Section 151 of the CPC for grant of ad interim order of temporary injunction for restraining the defendants and plaintiffs from changing any structure of the suit ‘C’ schedule properties. The said application was opposed by the plaintiffs. The Trial Court, by its order dated 16.02.2022, allowed I.A No.IV and dismissed I.A No.V and passed the following order:

“The application No.IV filed U/o 39 Rule 1 and 2 of CPC by defendant No.11 to 15 is hereby allowed.

The defendants and plaintiff are hereby restrained from alienating the suit schedule properties in any manner as prayed in the application till disposal of the suit.

The application No.V filed U/o 39 Rule 1 and 2 of CPC by defendant No.11 to 15 is hereby dismissed.”

3. Being aggrieved, the present appeal is filed by the defendant Nos.11 to 15, challenging the dismissal of I.A No.V.

4. It is the vehement contention of the learned counsel for the appellants that the Trial Court having allowed I.A No.IV, erred in rejecting I.A No.V. It is further contended that the photographs produced demonstrated the carrying out of construction activity and having regard to the specific averments made in the affidavit accompanying I.A No.V, the relief sought for by the said application ought to have been favorably considered.

5. It is forthcoming that the Trial Court while considering I.A No.V has recorded the following finding:

“16] These defendants in their pleading of I.A No.5 submits that the plaintiff and defendants are changing the nature of suit schedule property. As discussed above, these defendants not filed any development agreement before this court. These defendants submitted photographs of the C schedule property. Even if consider that these defendants are having share in the suit schedule property, they will get it along with plaintiff and other defendants. Therefore, this court holds that at this juncture, these defendants not made out prima-facia case in I.A No.5. Therefore point No.1 holds in negative.

17] Further, as stated above, the injunction order is equitable relief. As per the pleadings of the plaintiff and these defendants that they are joint owner of the suit schedule properties and they are joint possession of the same, under such circumstances, injunction order cannot be granted against the joint owners.”

(emphasis supplied)

6. It is further relevant to note that the appellants has filed I.A No.V seeking for the following reliefs:

“For the reasons sworn to in the accompanying affidavit, the Defendants No.11 to 15 humbly prays that this Hon’ble Court be pleased to grant ad-interim temporary injunction order for restraining the Defendants and plaintiff and their henchmen, agents, representatives from changing any structure of the suit schedule ‘C’ property till the disposal of this suit in the interest of justice and equity.”

7. In the affidavit accompanying I.A No.V, the 15t