RAM SWARUP Vs. RAM PRASAD

JUDGEMENT

(1.) THIS is a petition by the Defendant in the suit to revise the order of the Additional District Judge Gwalior refusing to grant the temporary injunction prayed for to the applicant.

(2.) THE facts of the case are that the Plaintiff -non -applicant has instituted a suit in the Court of District Judge Gwalior against the applicant for a partition of joint family property. The Defendant is said to be in possession of a joint family Hosiery Factory known as the Trilok Hosiery. Some time after the institution of the suit the Defendant made a report to the Police that the Plaintiff had stolen yarn belonging to the factory. Criminal proceedings were then instituted in respect of the alleged theft. They resulted in the discharge of the Plaintiff who was the accused in those proceedings. During the investigation, the police seized some yarn from Ram Prasad, the Plaintiff. As regards this yarn, it was ultimately ordered on 11 -5 -51 by this Court in Criminal Revision No. 43 of 1951 that the yarn be returned Ram Prasad from whose possession it was taken. On 12 -5 -1951. the applicant Ram Swarup presented an application to the lower Court praying that the Court should issue an order of injunction under Section 151 of the Code of Civil Procedure prohibiting the Plaintiff Ram Prasad from taking possession of the yarn which was in the custody of the City Magistrate Lashkar and also prayed that the yarn be made over to the applicant. The learned District Judge rejected the application for the grant of injunction holding that the Court had no power under Section 151 to grant injunction and that, therefore, the Petitioner's application for the grant of injunction was incompetent.

(3.) I am unable to accede to the arguments of the learned Counsel for the Petitioner. The application for the issue of an interim injunction was made under Section 151, Code of Civil Procedure. Obviously, Order 39 Rules 1 and 2 have no application to the facts of the case, nor was it contended before me that it had any application. In my opinion, the power of subordinate Courts to issue injunctions has been expressly stated in Order 39 and Section 151 of the Code, cannot be invoked to add to the powers conferred, by Order 39. It is true that it has been ruled in some decisions that apart from the powers under Order 39 Rules 1 and 2, the Court has power to issue an injunction under Section 151. - 'Kanshi Ram v. Sharaf Din' AIR 1923 Lah 144 (2) (A); - 'Adaikkala Thevan v. Imperial Bank, Madura Branch', : AIR 1926 Mad 574 03). A different view was taken in - 'Nasarvanji Cawasji v. Shahajadi Begam' : AIR 1922 Bom 385(2) (C). In regard to the cases which hold that Order 39 is not exhaustive of the Court powers to grant to a temporary injunction, it was observed by Varadachariar J. in - 'Murugesa Mudali v. Angamuthu Mudaliar' : AIR 1938 Mad 190 (D), that those cases do not give due weight to the words "if it is so prescribed" occurring in the opening paragraph of Section 94 of the Code. With due respect I find myself in complete accord with Varadachariar J. The word "prescribed" in Section 94 means 'prescribed by the rules contained in 1st Schedule of the Code'. This is clear from the definition of the words "prescribed" and "Rules" given in Section 2 of the Code. Reading, therefore Section 94 and Order 39 together, it follows that the power of a Court to giant a temporary injunction is limited to one prescribed by Rules 1 and 2 of Order 39. I think it is impossible to hold that in a matter which is specifically dealt with by Order 39, there can be implied in the Court outside the limits of Order 39 Rules 1 and 2 a general and wider discretion to grant temporary injunctions under Sections 94 and 151 of the Code in circumstances not covered by Order 39. I do not, however, propose to discuss the question further, because even assuming for the sake of arguments that the Court has power under Section 151 to grant temporary injunctions,' there is no justification in this ease to exercise that power. The yarn of which the Plaintiff is entitled to retain possession under the order of this Court in criminal Petition No. 43 of 1951 was in the Plaintiff's possession on 18 -1 -48 when the criminal proceedings were instituted against him in respect of the theft of yarn.' On 27 -4 -48, the learned District Judge passed an order prohibiting either party from interfering with the possession of the properties held by the other party; the applicant is, therefore, clearly not entitled to say that the yarn which was not proved to be in his possession prior to 27 -4 -48 and 18 -1 -48 but which was in possession of the Plaintiff -non -applicant, should now be made over to him. No authority has been cited to me to show that the retention by the Plaintiff of the yarn under the orders of this Court, and consistent with the order dated 27 -4 -48 of the trial Court would amount to committing an irreparable injury to the Petitioner. Learned Counsel for the Petitioner suggested that if the order of injunction is not given, the Plaintiff would be encouraged to disturb the possession of the applicant as regards other property and that the Petitioner would not be able to get yarn for the factory from the Controller. I am not impressed with this argument which is hardly relevant to the question of the grant of an injunction in respect of the possession of the yarn. If the Plaintiff disturbs the applicant's possession of other property, he is at liberty to complain to the Court that the Plaintiff be punished for disobedience of the order made on 27 -4 -48.