Amma Shah and another vs Ismail Shah and others

Mian Jalal-Ud-Din, J.—This appeal arises out of a miscellaneous order dated 24-5-1971 of the learned Addl. District Judge, Srinagar,

allowing the application of the plaintiff to restrain the defendants from interfering in the possession of the plaintiff in the suit property.

Ismail Shah, Plaintiff has brought a suit for declaration against the defendants to the effect that the suit land as described in the plaint is in his

possession as a full fledged owner, but the defendants are trying and threatening to dispossess him forcibly from the said land. Simultaneously with

the suit he moved an application for ad interim injunction restraining the defendants from interfering in his possession over the suit property. The

learned Judge issued a notice to the defendants and after hearing the arguments passed the impugned order.

The short point taken by Mr. G. Mohd. Ali counsel for the appellants is that the court below could not pass an order of temporary injunction in

a suit for declaration simpliciter unless the plaintiff made a prayer for consequential relief as well. In support of the proposition enunciated by him he

has relied upon Mohammad Ibrahim Khan Vs. Pateshwari Prasad Singh, , AIR 1946 Nag 428, AIR 1962 Man 18, AIR 1952 Pepsu 118, AIR

1923 Pat 133 and Union of India (UOI) Vs. Bakhshi Amrik Singh, . It is submitted that the plaintiff has not claimed any relief for perpetual

injunction in the suit therefore he is not entitled to an interim relief for an ad-interim injunction. Also the suit of the plaintiff in the present form is not

maintainable.

As against this Messers. M. A. Nehvi and Abdul Hamid have submitted that there was no necessity for the plaintiff to have claimed a specific

relief of injunction in the suit. Plaintiffs suit was maintainable notwithstanding the fact that he had omitted to add the relief of injunction in the plaint.

In a suit for declaration simpliciter the court could issue an order of temporary injunction against the defendants restraining them from interfering

with the possession of the plaintiff. Counsel for the respondents have relied upon L.D. Meston School Society Vs. Kashi Nath Misra, ,

Singheshwar Jha Vs. Ajab Lal Mandar and Others, , AIR 1937 295 (Lahore) and AIR 1969 Man 21 (Para 8).

On a consideration of the matter relating to the maintainability of the suit, I am of the view that a suit for declaration simpliciter in respect of the

property is maintainable. u/s 42 of the Specific Relief Act when the right or title to such property is denied by another person the court has the

power to pass a decree for declaration in its discretion. In such a suit the plaintiff need not ask for any further relief. This is provided by Section 42

itself of the Specific Relief Act. It cannot therefore be laid down as a broad proposition of law that in no case a suit for declaration is maintainable;

but where the plaintiff being able to seek further relief than a mere declaration of title omits to do so the court will not entertain such a suit and will

insist on the plaintiff to add the prayer for consequential relief. In the instant case we, however, find that on the one hand the plaintiff seeks

declaration of his title in the suit property and at the same time by means of an application seeks interim relief by way of temporary injunction. In

the very plaint he makes an averment to the effect that the defendants interfere with his possession and invade his rights. It is clear that not only

does the plaintiff seek recognition of his title in respect of the property but he further by means of an application wants to restrain the defendants

from doing an overt act. His allegation in the plaint regarding the defendants' interference in the suit property implies that the defendants are

invading his right and want to dispossess him. This indeed furnishes a cause of action to him and in my opinion, the plaintiff is, therefore, bound to

ask for consequential relief as per his own averments.

Again, In a case where the plaintiff seeks a mere declaration of his title it is doubtful if he can ask the court to grant him an interim relief of

temporary injunction in his favour, for here he does not allege any apprehension of interference by the defendant. But where, however, as in the

present case the plaintiff says that he is in possession of the suit property and further says that he apprehends an interference from the defendants

then in that case before claiming an interim relief of temporary injunction he must specifically pray either for permanent or for mandatory injunction

in the suit. Further, an examination of the provisions of Rule 1 of Order 39, CPC would reveal that a court is competent to grant temporary

injunction only where any property in dispute in a suit is in danger of being wasted, damaged or otherwise being dealt with, or the defendant

threatens to dispossess the plaintiff from the said property. In a suit for declaration simpliciter there cannot be said to be any such dispute in regard

to the property because the fight is not about the property but about the right to the property, and the property itself is not directly involved.

Therefore no temporary injunction can be ordered. I am fortified in my view by the observations made in Mohammad Ibrahim Khan Vs.

Pateshwari Prasad Singh, para 7 and again in AIR 1962 Man 18. These authorities lay down the proposition that where a suit is merely for

declaration of title without any consequential relief and no further relief is claimed, no order of temporary injunction could be granted by the Court

on these averments. AIR 1969 Man 21 on which reliance is placed by the learned counsel for the respondents was a case for declaration with

partition and also for possession. Therefore the said authority is distinguishable. AIR 1937 295 (Lahore) and Singheshwar Jha Vs. Ajab Lal

Mandar and Others, cited above and relied upon by the respondents lay down precisely the same proposition of law relating to maintainability of

the suit u/s 42 of the Specific Relief Act as has been stated above. There can be no dispute with regard to these propositions. The moot question,

however, before us is whether the impugned order is sustainable in view of the frame of the present suit. In my opinion it is not for the reasons

mentioned above.

I would, therefore, allow this appeal and set aside the order of the Court below. The trial court will now proceed to deal with the case in

accordance with the observations made above.

Mufti, J.:

I agree with my learned brother, Mian Jalal-ud-Din, J., that the appeal should be accented and the order of temporary injunction granted by the

lower court set aside but I would like to add a few words of my own.

The provisions governing the grant of temporary injunction are contained in Order 39, Rules 1 and 2 of the Code of Civil Procedure. Order 39.

R. 1 reads:-

Where in any suit it is proved by affidavit or otherwise-

a) That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution

of a decree, or

b) that the defendant threatens or Intends, to remove or dispose of his property with a view to defraud his creditors the court may by order grant a

temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation,

sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.

and Order 39 Rule 2, so far as relevant, provides:

(1) ""In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in

the suit or not, the plaintiff may at any time after the commencement of the suit and either before or after judgment, apply to the Court for a

temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury

of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may by order grant such injunction on such terms as the duration of the injunction keeping an account giving security or otherwise as

the Court thinks fit.

Rule 1 is intended to frustrate attempts regarding dissipation or disposal pendente lite of suit property as also those directed towards the

disposal of other property by the defendant with a view to defrauding his creditors. In this the form of the suit is not material and so long as the

plaintiff is able to show that he has a prima facie case and that an irreparable loss will ensue if the temporary injunction were withheld, the court will

be justified in granting such injunction. Thus in a suit for declaration simpliciter with regard to the title of any land in the plaintiff's possession the

plaintiff may under Rule 1 legitimately ask for a temporary injunction restraining the defendant from digging or removing the earth therefrom or

otherwise damaging it or even from entering into negotiations for the sale thereof. He cannot, however, do so where the act sought to be prevented

is interference with his possession. Such an act would not be one covered by Rule 1. For this he must rely upon Rule 2 as an ""injury of any other

kind"". That Rule, however, envisages the pre-existence of a suit to restrain such act permanently. Unless, therefore he combines with the relief for

declaration of title a consequential relief by way of permanent injunction and pays the necessary court-fee, he cannot be entitled to an order for

temporary injunction. If he omits to do so and confines his claim to mere declaration of title a temporary injunction preventing interference by the

defendant with his possession would amount to the enlargement indirectly of the relief claimed in the suit which the law does not countenance. In

such a suit, even if the plaintiff were to succeed, all that he will get is a declaratory decree and not a prohibitive decree. What he could not,

therefore, get directly upon trial of the suit, he cannot be allowed to have indirectly by means of a temporary injunction. All these points arose in the

present case which the learned Additional District Judge has omitted to consider. That is what makes his order bad which must therefore, be set

aside. I make an order accordingly.

Appeal allowed.