Bishun Prashad Pathak and others vs Sashi Bhusan Misra and others

Mullick, J.—The plaintiffs brought a suit out of which this appeal arises for a declaration of their Patni Taluk right to certain jungle alleging that the defendant No. 6 with a large number of men was ready to cut the trees in the jungle. The defendants pleaded that the plaintiff''s had no right in the jungle and that they had no possession for 12 years. While the suit was pending the plaintiffs applied for an ad interim injunction to restrain the defendant from cutting any trees and on "the 28th November 1921 the Subordinate Judge passed an order restraining the defendants from disposing of such trees as they might out in reclaiming the land till the disposal of the suit. The Subordinate Judge''s view was that the defendants were apparently entitled to cut trees for the purpose of reclamation and that while it was not proper and reasonable to restrain them from cutting any trees at all, it would be right and proper to restrain them from disposing of the trees that they might out.

The present appeal was lodged by the defendants on the ground that this is not a case in which there can be any interim injunction. Now, the general principle applicable to cases of this kind is that where a permanent injunction cannot be given, no prayer for a temporary injunction will be allowed The learned Vakil for the respondents urges that it is necessary that the (sic) que should be preserved and that the trees should not be allowed to go out of the hands of the defendants in the event of the plaintiffs succeeding in their present suit but he forgets that the present suit is only for declaration and that it will not give the plaintiffs any consequential relief so far as the trees are concerned. Upon the frame of the plaint it may be contended that the present suit does not lie; that is another matter which will be decided at the trial; but so far as the justice of the case goes, I see no reason why the defendants, who deny the plaintiffs'' title and claim to be in possession should be restrained from disposing of what they claim to be their own property. The learned Vakil for the respondents attempted to distinguish the case of the Jit Lal Singh v. Raja Kamlleswari Prasad (16 Cal LJ. 555); in that case the interim prayer was to restrain a person who had obtained a decree, from executing such decree while a suit was pending for a declaration that the decree had been obtained without jurisdiction and the principle, that an ad interim injunction aught not to be given when permanent relief is not obtainable, was affirmed; this principle is consistent with reason and in the present case, therefore, we should comply with it.

The result is that the appeal is allowed with costs.

Kulwant Sahay, J.

I agree.