T PANNEERSELVAM Vs. A BAYLIS

JUDGEMENT

(1.) The defendant in O.S. 158 of 1984 on the file of the Principal Subordinate Judge, Madurai, is aggrieved against the order made in I.A. 667 of 1985 in which the learned Subordinate Judge granted interim injunction restraining the present appellant from alienating the suit property pending disposal of the respondent's application under O.9, R.9, C.P.C.

(2.) At the outset, as pointed out already, this is a mere interim order passed in the presence of both the parties. This will show that no final order has been passed in the application, Nonetheless, Mr. Govindarajan learned counsel for the appellant very seriously argues that the Court below cannot pass an order of injunction pending an application under O.9, R.9, C.P.C. because the suit itself is no more on the file of the Court. In this context, the learned counsel for the appellant would rely upon Ram Sarup v. King Emperor, AIR 1924 Oudh 345. The learned Judicial Commissioner has held that the Court cannot grant temporary injunction in a suit which has been dismissed for default but for the restoration of which the application is pending. I am unable to agree for several reasons. First of all this decision was rendered as early as 1924. The law is not static but dynamic. It is always on the forward march. The recent trend of law is that the hypertechnicalities shall not stand in the way of the Court administering justice. In this case the suit is for specific performance. No doubt it was dismissed but then, the respondent-plaintiff came forward with an application under O.9, R.9, C.P.C. He apprehended that taking advantage of the dismissal of the suit, the appellant herein might alienate the property and if he should alienate, the suit itself will become redundant. This was thoroughly and properly appreciated by the learned Subordinate Judge because while he granted time for counter by the present appellant he did not grant interim injunction. In my view, the order is only to advance justice and did not cause any prejudice to either parties.

(3.) The second argument is that the petition is laid under O.39, R.1, C.P.C., and no suit is pending, the respondent is not entitled to resort to O.39, R.1, C.P.C. It might be that the respondent is not entitled to invoke to his aid O.39, R.1, C.P.C. But the Supreme Court has held that notwithstanding O.39, R.1, Court possesses the power under S.151, C.P.C., to grant interim injunction if the facts could not be brought within the four comers of O. 39, R. 1, C.P.C., but in the interests of justice. I have also held that S.151, C.P.C., is to supplement the powers expressly provided such as O.39, R.1, C.P.C. Then, the Court below had the right under S.151 to pass the order that is assailed in this appeal.