HAMSA Vs. GEORGE

JUDGEMENT

(1.) The question whether an order of temporary injunction can be granted on the application of a defendant has been referred to a Division Bench by a learned single Judge. The question more precisely is whether the injunction envisaged in O.39 R.1(c) of the Code of Civil Procedure (for short the 'Code') can be granted when a defendant moves for the same. Learned Single Judge thought it necessary to have an authoritative pronouncement on the question as he felt that there is conflict between the observations contained in Vincent v. Aisumma, 1988 (1) KLT 420 and the views expressed in Gopalakrishnan Nair v. Joshi, 1985 KLT 132 .

(2.) An injunction is a judicial process whereby a party is required to do, or to refrain from doing, any particular act. One of the primary purposes of granting interim relief is preservation of the property in dispute till the legal rights and conflicting claims of the parties before the court are adjudicated. It is in the nature of a protective relief granted in favour of a party to prevent future possible injury. A temporary injunction is regulated by the provisions of S.94 and O.39 of the Code, and it can be granted at any stage of the suit. Grant of temporary injunction is in the discretion of the Court The discretion, however, should be exercised reasonably, judiciously, and on sound legal principles. O.39 R.1 is extracted below:

(3.) A Learned Single Judge of this Court in B. F. Varghese v. Joseph Thomas, 1956 KLT 615 endorsed the view that an injunction could be granted to a defendant by invoking the inherent powers of the court under S.151 of the Code. Learned single Judge relied on the principle followed by Buckly, J. in the case of Collision v. Warrant, 1901 (1) Ch.812. In B.F. Varghese's case (supra), the defendant preferred an application for mandatory injunction restraining the plaintiff to remove the block up and replace the door as well as put back the smoke tiles on thereof. The Trial Court granted the prayer and learned single Judge upheld it.