ZANDARAM JOITARAM Vs. PRAHLADRAO VITHALRAO

JUDGEMENT

(1.) The opponent filed a suit being Suit No. 1147 of 1961 for a declaration that he was a lawful sub-tenant of the defendants and for a perpetual injunction restraining the defendants from disturbing the plaintiffs possession of a cabin. An interim injunction was granted but was vacated. It was vacated on the ground that the plaintiff did not make out a prima facie case to show that he ever occupied the suit premises as the defendants tenant. After the temporary injunction was vacated it appears that the cabin was removed by the defendants. Against the order vacating the temporary injunction an appeal was filed and in appeal the learned Assistant Judge Ahmedabad ordered that in the interests of justice an injunction should be issued against the respondents that they should not obstruct the appellant-plaintiff in occupying the said `Ota or putting up a cabin on the said `Ota. A prayer for a mandatory injunction which was also made in the appeal was not pressed and was not considered by the appellate Court. The order of the appellate Court granting a temporary injunction against the respondents (defendants) restraining them from obstructing the appellant (plaintiff) from occupying the said `Ota is now challenged in revision.

(2.) The suit was for a permanent injunction to restrain the defendants from obstructing the alleged possession of the plaintiff of the ` Ota and the cabin on it. It was the case of the plaintiff that he was in possession of the `Ota and the cabin and was a sub-tenant of the defendants. He prayed that the defendants should be restrained from disturbing his possession from the `Ota and the cabin. When the suit is for A permanent injunction of a particular kind an interim injunction of the same kind can be issued but not of a different kind unless there is provision for such a thing in O. 39 C. P. Code. The suit is for a permanent injunction to restrain the defendants from interfering with the alleged position of the plaintiff but as the appellate Court granted an interim injunction without stating whether it was temporary or permanent to restrain the defendants from obstructing the plaintiff from occupying the said `Ota in other words from taking possession of the `Ota. The suit was not one for possession; and in the guise of a temporary injunction a party cannot be assisted in taking possession which at the time of the order was not with him. There is no finding of the appellate Court that the appellant (plaintiff) was in possession of the `Ota in question. There is no finding of the appellate Court whether the cabin which existed at the time of the suit had been put up by the plaintiff or by the defendants.

(3.) Under 0. 39 R. 1 C.P. Code an interim injunction can be issued to restrain an act of the type mentioned in O. 39 R. 1 or to make such an order for the purpose of staying and preventing the waste. damage alienation sale removal or disposition of the property. In the instant case it is not the case of the either party that the order passed by the appellate Court was for the purpose of staying and preventing waste damage alienation sale removal or disposition of any property.