GIANO Vs. BHIM SINGH AND ANR.

JUDGEMENT

(1.) A money decree was passed in favour of Bhim Singh Respondent against Giano Respondent in a suit filed by Bhim Singh against Giano for specific performance of the agreement to sell certain property and in the alternative for the refund of the earnest money, etc. In execution of that decree the land now in dispute was sought to be attached and sold. Smt. Giano Plaintiff -Petitioner objected to the attachment of the agricultural land. Her objections were upheld. Bhim Singh Respondent then filed a suit for declaration to the effect that the land in dispute belonged to the judgment -debtor Giano (who is the husband of the Plaintiff -Petitioner) and was liable to attachment and sale in execution of his decree. That suit was decreed ex -parte on August 29, 1974. Thereupon the present Plaintiff -Petitioner filed the suit from which the present proceedings have arisen in August, 1976. In this suit she has prayed for a declaration to the effect that the judgment and decree, dated August 29, 1974, in suit No. 698, dated August 28, 1974 and the mutation mentioned in the plaint are null and void and are not binding on the Plaintiff and the Plaintiff is still the owner in possession of the suit land mentioned in the plaint. Along with the suit the Plaintiff filed an application for a temporary injunction to restrain Defendant -Respondent No. 1 from getting the land auctioned till the final disposal of the suit. By his order, dated September 9, 1976, the Subordinate Judge First Class, Sonepat, dismissed the Plaintiff's application on at least three different grounds. The Plaintiff's' appeal against the order of the trial Court has been dismissed in limine by the Court of Shri Raj Kumar Gupta, Senior Subordinate Judge, Sonepat (with enhanced appellate powers) on October 30, 1976. The only ground on which the appeal has been dismissed is that no temporary injunction can be granted in a suit for a declaration simpliciter. Reliance has been placed for that proposition on certain observations in the judgment of Gurdev Singh, J. in Surja and Ors. v. Gopi and Ors., 1970 Cr. L.J. 188. The learned Senior Subordinate Judge, has not gone into the correctness or validity of all other grounds urged by the Plaintiff before the trial Court. Nor has he dealt with the application for temporary injunction on merits.

(2.) THE only question that, therefore calls for decision in the present case is whether the learned Senior Subordinate Judge has or has not refused to exercise jurisdiction vested in him by law to grant a temporary injunction pending a declaratory suit. In other words the question is whether temporary injunction can or cannot be granted in a suit for declaration simpliciter. Section 37(1) of the Specific Relief Act states that temporary injunctions are such as are to continue until a specified time, or until the further order of the Court and they may be granted at any stage of a suit. The section further provides that the grant of temporary injunction is regulated by the Code of Civil Procedure. Rules 1 and 2 of Order 39 of the Code of Civil Procedure enumerate the circumstances in which a temporary injunction may be granted. If the relevant part of the provision is extracted from Clause (a) of Rule 1 of Order 39 of the Code it would read as below:

(3.) ON the other hand the learned Counsel for the Plaintiff -Petitioner has invited my attention to the judgment of the Lahore High Court in Bantu v. Lehna Das and Ors. : A.I.R. 1926, Lah 523, wherein it was clearly held that a temporary injunction can be granted in a suit for declaration. In my opinion it is not possible to lay down as a matter of law either that an injunction can always be granted in a suit for declaration or that no injunction can ever be granted in such a suit. On the facts of each cage it will have to be decided whether the application for injunction does Or does not fall within the four corners of either Rule 1 or Rule 2 of Order 39 of the Code The question of exercise of inherent jurisdiction of the Court is a separate matter. On the facts of this case I hold that a temporary injunction can be issued under Order 39, Rule 1(a) of the Code if the Plaintiff is able to make out a case on merits for the issue of such an injunction.