DILIP KUMAR Vs. CH. RAM SARAN VAKIL

JUDGEMENT

(1.) This petition in revision has been filed by the plaintiff Dilip Kumar who had filed a suit for injunction against the opposite party stating that the opposite party was interfering with his construction of a certain structure. During pendency of the suit the plaintiff-petitioner prayed for a temporary injunction restraining the defendant from interfering with making the construction. The opposite party's defence was that the land on which the disputed construction was put up was in his possession; that he possessed right of way on the land. The defendant also moved an application for temporary injunction against the plaintiff petitioner before the Munsif stating that the construction in dispute had been put up but the plaintiff threatened to use the same as a latrine. The trial Court grant a temporary injunction against the plaintiff also on the report of the commissioner that the disputed construction opened on the door of the defendant-opposite party. The plaintiff was restrained from making use of the construction as a latrine during pendency of the suit. Against the temporary injunction granted in favour of the defendant the petitioner appealed which was dismissed and therefore this revision.

(2.) The first contention of counsel for the petitioner is that a temporary injunction could not be granted by the Court in favour of the defendant under order 39 rule 2, Code of Civil Procedure and that the remedy of the defendant lay in filing a suit for permanent injunction against the plaintiff and for asking the relief of a temporary injunction in such a suit. The contention of the learned counsel that temporary injunction could not be granted in favour of the defendant by the trial court and could not be confirmed by the appellate Court Order 39 rule 2 of the Code appears to be sound so far as it goes as appears from the very reading of the language of rule 2 of Order 39. From the language of rule 2 of Order 39 it is plain beyond controversy that a temporary injunction can be asked for and granted only by the plaintiff and this contention is also supported by Kangabam Birmangol Singh Vs. Laimayum Ningol Aribam Ongbi Madhabi Devi, A.I.R. 1962 Manipur 55 . Learned counsel further contended that a temporary injunction could not be granted in favour of the defendant under Sec. 151, Code of Civil Procedure also. This contention must be rejected as untenable in view of the Supreme Court decision in the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, A.I.R. 1962 SC 527 . In this case the Supreme Court held that the courts possess power to grant temporary injunction in a given Case not strictly covered by Order 39 with a view to do justice to the parties. The question still remains whether temporary injunction could be granted by the trial court in favour of the defendant in exercise of inherent powers under Sec. 151, Code of Civil Procedure. To my mind such injunction can be granted by a court in suitable cases under its inherent powers for the ends of justice in favour of the defendant and against the plaintiff as held by the Supreme Court in Manohar Lal Chopra's case. If a temporary injunction can be granted under Sec. 151 in favour of the plaintiff there appears to be no reason why in suitable cases temporary injunction cannot be granted by the Court under its inherent powers in favour of the defendant also and to my mind there is no substance in the argument that this relief could be obtained by the defendant only by filing a regular suit for permanent injunction against the plaintiff. In the case of B.F. Verghese Vs. Joseph Thomas, A.I.R. 1957 Travancore-Cochin 286 a mandatory temporary injunction was passed in favour of the defendant the validity of which was challenged before the High Court of Travancore-Cochin. The following observations made by the Court have relevance for the present discussion :

(3.) For the aforesaid reasons I am of the opinion that there is no merit in this revision. The courts below were right in the view that the trial court possessed jurisdiction to grant temporary injunctions. As there was no error of jurisdiction the revision fails and is dismissed with costs.