Babu Singh Alias Parma Nand vs Jaswant and another

Prem Chand Pandit, J.—This is a defendant''s revision petition against the decision of the learned Senior Subordinate Judge, Ambala, reversing on appeal the order of the trial Court dismissing the plaintiffs application for a temporary injunction under Order 39, rules 1 and 2 and section 151, Code of Civil Procedure.

On 11th April, 1972, Jaswant Singh and Punjab Singh of village Bataur, District Ambala, brought a suit against Babu Singh alias Parma Nand for a permanent injunction restraining the defendant from interfering with their possession of the land in dispute. Their allegations were that they were in possession of the land as owners and the defendant was trying to dispossess them from the said land.

The suit was resisted by the defendant, who denied the allegations made by the plaintiffs and averred that he was the owner of the land and also in possession thereof.

Alongwith the plaint the plaintiffs made an application under Order 39, rules 1 and 2 and section 151, Code of Civil Procedure, praying that a temporary injunction for the same relief be granted to them during the pendency of the suit.

This application was, in the first instance, granted ex-parte. But, no notice having been issued to the defendant and after hearing him, the trial Court vacated the ex-parte order. Thereafter the plain tiffs went in appeal, and the learned Senior Subordinate Judge reversed the said order and granted the temporary injunction prayed for by the plaintiffs. Against that decision, the present revision petition has been filed by the defendant.

The first argument raised by the counsel for the petitioner is that no appeal was competent against the order of the trial Court in the instant case. The order passed by the learned Judge would not be covered by the provisions of Order 39, rule 2 and the same, according to the counsel, was made u/s 151, Code of Civil Procedure. Any order pissed u/s 151 will only be revisable and no appeal is competent against such an order The order made by the learned Senior Subordinate Judge on appeal will, therefore, be without jurisdiction.

It is undisputed that if the order by the trial Judge was passed under Order 39, rule 2, Code of Civil Procedure, then the plaintiffs had properly filed an appeal against the same before the learned Senior Subordinate Judge. Order 39, rule 2 (1) reads:

Injunction to restrain repetition or continuance of breach--(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.

If the possession of an owner of the property is being disturbed by a person and he, consequently, files a suit for a permanent injunction restraining the defendant from interfering with his possession, then such a suit, according to me, will be "for restraining the defendant from committing an injury" within the meaning of this expression occurring in Order 39, rule 2, Code of Civil Procedure, because the word "injury" envisages an act, which is contrary to law. That being so, he can also apply for a temporary injunction for the same relief under this provision during the pendency of his suit. An owner in peaceful possession of his property cannot be denied such a relief, if his possession is interfered with by a trespasser.

Chitaley in his Commentary on this point in the CPC says:

Under the old Code, the words "of any kind" were absent. It was held by the High Court of Allahabad that the word "injury" referred only to injuries akin to breaches of contract and that, therefore, no injunction could be granted in respect of other kinds of injury such as trespass or nuisance. The addition of the words "of any kind" after the words "or other injury" in the present rule makes it clear that an injunction can be granted to restrain any kind of legal injury. The word "injury" connotes as act or omission contrary to law, resulting in an infringement of a right vested in a person. Thus an infringement of a copyright or of a trademark or an obstruction to a right of easement, or to the exercise of rights of property or of a right of public worship, 01 the commission of a waste or of a nuisance, is an injury in respect of which an injunction may be granted under this rule.

In a case decided by the Supreme Court Firm Ishar Das Devichand and Another Vs. R. B. Prakash Chand and Another, , the facts were that an eviction order had been obtained by the defendant against the plaintiffs from the Rent Controller. The plaintiffs filed a suit for a permanent injunction restraining the defendant from taking possession in execution of that order. They also made an application under Order 39, rules 1 and 2 and section 151, Code of Civil Procedure, for the grant of a temporary injunction. The trial Court dismissed the application holding that no prima facie case had been made out and that the liability to be ejected in execution of a valid order could not be said to be "injury" within Order 39, rule 2. The plaintiffs filed an appeal against that order, the appellate Court had that no appeal lay against that order because the same was passed u/s 151 and not under Order 39, rules 1 and 2, Code of Civil Procedure. The plaintiffs then approached the High Court in revision, but the same was dismissed. The plaintiffs thereafter moved the Supreme Court after obtaining special leave. The Supreme Court then observed:

It is common ground that the appellants filed an application under Order XXXIX, Rules 1 and 2, and Section 151, Code of Civil Procedure. The learned Sub-Judge had to consider whether this application was competent or not competent under rule 2, of Order XXXIX. In deciding that no such application lay under Order XXXIX, Rule 2 on the ground that what the appellants were complaining of was not an injury within Order XXXIX, Rule 2 he was passing an order under Order XXXIX, Rule 2 itself. In appeal the appellants could contend that the learned Sub-Judge had misconstrued Order XXXIX, Rule 2, including the word "injury".

The preliminary objection of respondent before the learned District Judge that the order dated July 20, 1967, of the Sub Judge was passed u/s 151, Civil Procedure Code, and not under Order XXXIX, Rules 1 and 2, CPC is not sound because in holding that Order XXXIX, Rule 2 did not apply the learned Sub-Judge was not exercising his inherent powers. What the learned District Judge seems to have done is to hold that the application for temporary injunction did not fall, within Order XXXIX Rule 2 and, therefore, no appeal lay. This reasoning is really on the merits of the case and not relevant to the preliminary objection raised by the respondent.

We must, therefore, hold that the District Judge and the High Court erred in holding that no appeal lay against the order of the trial Court, dated July 20, 1967.

Reference in this connection was made by the learned counsel for the petitioner to a Single Bench decision of this Court in Shankar Singh v. Firm Sudarshan and Co (1968) 70 PLR 354.

The case of Shankar Singh is clearly distinguishable on facts. There the person against whom a temporary injunction was sought was trying to obtain possession of the land in pursuance of an order of a Court and it was held that while doing so, he could not be said to be acting contrary to law and, therefore, the injunction prayed for by the plaintiff was not covered by the provisions of Order 39, rules 1 and 2, Code of Civil Procedure.

In the instant case, the plaintiffs allegations were that they were in possession of the property as owners and the defendant was bent upon disturbing their possession and that necessitated the filing of the suit for a permanent injunction. Along with the plaint, they also made an application for obtaining the same relief during the pendency of the suit. In my opinion, therefore, the present case would be covered by the provisions of Order 39, rule 2, Code of Civil Procedure. I, therefore hold that there is no merit in this submission of the learned counsel.

The next contention of the counsel is that, in the circumstances of the present case, the learned Senior Subordinate Judge was in error in granting the temporary injunction prayed for by the plaintiffs.

On this point also, I am of the view that the learned Judge was right. He, in the impugned order, has observed that the latest Jamabandi of 1968-69 read with a copy of the Fard Badar shows that the plaintiffs are recorded as the owners of the suit land in equal shares. He further says that the copies of the entries in the khasra Girdawari in respect of the suit land show that the land in dispute was in the cultivating possession of the plaintiffs from Kharif 1969 to Kharif 1971. The suit, in the instant case, was filed by the plaintiffs on 11th April, 1972. Before the learned Judge, the counsel for the defendant referred to the copy of the Khasra Girdawari entries of 12th April, 1972, which, according to the defendant, were in his and his Co-sharers'' favour. The learned judge had, however, not placed any reliance on the same, after observing that the suit land could not be identified with the Khasra numbers mentioned in those entries. A reference was also made to mutation No. 2139, according to which, the land in question was mutated in favour of the defendant and his co-sharers. This mutation, which was referred to in the Khasra Girdawari mentioned by the defendant was also considered by the learned Judge and he held that it was well established that a mutation did not create any title in favour of the party concerned. This is what he actually observed regarding the said mutation:

The attestation of a mutation is even no proof of the change of possession of the land entered therein. A perusal of the order of the revenue officer on the mutation shows that it was attested in the absence of the plaintiffs. So the plaintiffs are not bound by the entries in this mutation. Moreover, this mutation is based on the order dated 6th November, 1964, of the Additional Director, Consolidation of Holdings, to which a reference has been made earlier. There is no reference in that order to the land in suit, as stated above.

The learned Judge also referred to an other circumstance that one of plaintiffs, namely, Jaswant Singh, had filed an affidavit deposing that he and the other plaintiff were in possession of the land in suit. According to the learned Judge, no counter-affidavit had been filed by the defendant. After considering all these facts, the learned Judge was of the view that the plaintiffs had a prima facie case in their favour and therefore, he granted the temporary injunction prayed for by them. It was said that the trial Court had, after the inspection of the spot and discussing the evidence, given a finding that the defendant was actually in possession of the land. With regard to this finding, the observation of the learned Senior Subordinate Judge was that, while disposing of the application for a temporary injunction, the Court had only to see as to whether the plaintiff had a prima facie case to be tried or not and further whether or not the balance of convenience was in his favour. It was not necessary to give a positive finding with regard to possession, because if that was done, then obviously the main suit would also be decided on the basis of that very finding, As I have said, in the suit it was claimed that the plaintiffs were in possession of the land and the defendant be restrained from disturbing their possession. If while disposing of the application for a temporary injunction, a firm finding was recorded with regard to possession of the property, that would obviously be prejudicing the issue in the case. In view of the various circumstances mentioned by the learned Senior Subordinate Judge, he was right in holding that the plaintiffs had a prima facie case in their favour, which had yet to be tried and, therefore, he was justified in granting the temporary injunction prayed for.

In view of what I have said above, I dismiss this petition, but leave the parties to bear their own costs. I, however, direct the trial Judge to dispose of the suit as expeditiously as possible, preferably within six months. Before I part with the case, I want to make it clear that any observation made by me, while disposing of the revision, should not in any way affect the merits of the case which has still to be tried by the Court below. Parties have been directed to appear before the trial Judge on 29th January, 1973 for further proceedings in the suit.