Bishan Das vs Bawa Shri Ram

Kesho Ram Passey, J.—This appeal is an off-shoot of the litigation proceeding... between Bawa Bishan Das defendant and his sons and grandsons, who figure as plaintiffs. A suit for a declaration that the property specified in the plaint which is fairly extensive and of considerable value is joint family property and that Siri Ram plaintiff, who is son of Bawa Bishan Das is the Karta of the family, was brought on 20-11-2003, and an application under O. 39 R. 1, Civil P.C. was made on 8-1-06, for restraining Bawa Bishan Das from alienating the property or any portion thereof. The plaintiffs led evidence to prove that the defendant had sold property and was contemplating further transfer. The learned District Judge who is trying the case made an order as prayed for on 8-7-1949 as he was of the view that the defendant had "no justification, reason or occasion to sell, mortgage or alienate the property or even talk about the sale of the property regarding which there is a dispute in Court". The counsel of the defendant argued in this Court that no injunction could be issued when the suit was one for declaration only but the objection was overruled with the following observation:

I think it would be futile to go into this intricate question at this stage. The property remains in the hands of the defendant and there is no possibility of his losing any property if he is ordered not to mortgage, sell or encumber the property during the pendency of the suit.

It is against this restricting order that the present appeal has been filed, and I agree with the learned counsel of the appellant that the question involved has not been considered from a correct or proper legal angle. The objection regarding the maintainability of an application for an injunction in this suit in which a declaration alone had been prayed for must have been decided at the stage it was urged, for, if the application was accepted without considering the objection, there will be no other occasion or stage when it could be advanced in the trial Court. The suit of the plaintiffs is for a declaration simply and no consequential relief or perpetual injunction has been prayed for. It has been stated in the plaint that they are in joint possession of the property which is coparcenary property and this should make it clear that the litigation pertains to the right of the plaintiffs to the property which is an incorporeal right and not to the property directly. The suit as instituted does not ask for preventing Bishan Das from selling or encumbering the property. The plaintiffs have not prayed for that relief which they want to get by means of a temporary injunction order. Even if they succeed in the suit, the decree that would be granted to them will be a declaratory decree and not a prohibitory decree. That decree will not place any restraint on the powers of disposition of the defendant or require him never to make any alienation.

Obviously therefore the plaintiffs should not be granted a relief even temporarily which they are not entitled to obtain in the event of their suit terminating successfully. Although it cannot be prescribed inflexibly that in no suit for declaration a temporary injunction can be granted but unless there are immediate or exceptional reasons, no such restraining order should be made when the plaintiff has not asked for some consequential relief or a permanent injunction. I would not deny that it is in the Court''s discretion to grant an injunction but that discretion must be exercised in consonance with sound rules of justice and must not smack of caprice, arbitrariness or mistaken notions about the law relating to injunctions. One of the rules that should guide Courts in invoking their discretionary powers is that the plaintiff must make out by leading evidence that irremediable harm would result to him if a preventive order is not made.

In the present case it has not been shown that the plaintiffs would be left without remedy if the relief is not granted to them. The question should be considered not from the point of view whether the defendant would suffer any harm if an injunction is issued but from whether the property in dispute is in danger, and whether an irreparable injury to the rights of the plaintiff is impending. More important than these considerations would be the nature of the suit and the relief claimed and if the plaintiff has not prayed for a permanent preventive relief in the suit, he is not obviously entitled to get it by the indirect method of a temporary injunction. With the limited scope of the suit, it is too much to hold that the defendant cannot even ''talk about the sale of the property regarding which there is a dispute in Court" the capacity or authority of the defendant to alienate the property is not in dispute in the present litigation and the absence of requirements that might necessitate an alienation cannot be presumed. If the plaintiffs apprehended a genuine wastage of the property, they should have sued for appropriate relief paying the necessary court-fee. For all these reasons I am unable to uphold the order made by the learned trial Judge and therefore accept the appeal but leave the parties to bear their own costs. Parties through their counsel have been directed to appear in the Court of the District Judge Kapurthala on 15-2-1951.