Ajit Singh vs Gopi Ram

S.P. Goyal, J.—The plaintiffrespondent instituted a suit giving rise to this petition for possession of the land in dispute by way of preemption of the sale as cosharer. After the institution of the suit, vendee filed a petition before the Assistant Collector for partition of the Khewat and separation of the share of the land purchased by him and subjectmatter of the suit of preemption. The plaintiff moved an application for ad interim injunction restraining the vendee from pursuing partition proceedings which was allowed by the trial Court on the ground that if the prayer was declined, the statutory right shall stand defeated. Aggrieved thereby the defendant vendee have come up in this revision.

Section 41 (b) of the Specific Relief Act provides that an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought. The trial Court completely overlooked this provision which as held by the Supreme Court in Cotton Corporation of India v. United Industrial Bank Ltd and others, A.I.R. 1983 S.C. 1272 equally applies to the grant of temporary injunction and thus acted illegally in exercise of its jurisdiction.

The learned counsel for the respondent on the other hand, relying on Sujit Pal v. Balbir Kumar Son and others, A.I.R. 1986 Cal. 220 T. Panneerselvam v. A Baylis, A.I.R. 1986 Mad 284, Madan Mohan v. Rasti Prashad and another, A.I.R. 1977 Raj 191 and Gem Plastics Industries Kanpur v. Union of India and others, A.I.R. 1977 Delhi 30 contended that the trial court had the jurisdiction to grant ad interim injunction under Section 151 even in which would not be strictly governed by the provisions of Order 39, rules 1 and 2 Civil Procedure Code. There can be no dispute with this proposition but even under section 151 and injunction cannot be granted in violation of the provisions of section 41(b) of the Specific Relief Act. The decisions relied upon therefore, have no bearing so far as the present case is concerned.

It was next contended that any improvement in the status of the vendee after the institution of the suit would be wholly fertile in view of the provisions of section 21A of the Punjab Preemption Act which provides that any improvement, otherwise than through inheritance or succession made, in the status of a vendee defendant after the institution of a suit for preemption shall not effect the right of the preemption plaintiff in such suit. This argument again has no relevancy because the provisions relied upon does not debar the institution or continuation of the partition proceedings. Moreover, it has already been settled by this court in Shiv Singh v. Phuman (Vol 50) 1948 P.L.R. 78 that on partition of the Khata, it is the preemptor who loses his right of preemption because of the loss of his status of a cosharer and that it would not be a case of improvement in the status of the vendee as contemplated by the said section 21 A of the Punjab Preemption Act. Consequently this petition is allowed with costs and the impugned order quashed.