Harbans Lal and Another vs Banarsi Das

J.N. Wazir, C.J.—This is a revision application directed against the order of the Additional District Judge, Jammu, vacating the order of the

trial Court of Munsiff Jammu granting the Plaintiffs-applicants a temporary injunction against the Respondent restraining him from letting out the

property till the disposal of the suit.

The facts which gave rise to this revision application briefly stated are these. Banarsi Das Respondent is the landlord who obtained a decree for

ejectment in respect of a shop situate in Raghunath Bazar, Jammu, against one Jagadish Raj, his tenant. The suit for ejectment was finally decreed

by the High Court in April, 1959. The landlord decree-holder took out execution of the decree in the Court of Sub-Judge Jammu. The present

Petitioners Harbans Lal and Jia Lal filed objections in facts alleged in the police (sic) person was necessary (sic) inter alia, that the fence under

Sections 42/(sic) into a agreement (sic) Merely because s(sic)onths at a rental of Rs. 30 (sic)mitted it cannot be decree-holder had received certain

other fan advance and was not entitled to blish the offer against then who were not party the fact ad(sic) is really sections, after enquiry, were over-

(sic) of the executing Court and it was ordered that (sic) pointing virtue of that order the decree-holder (sic) Hig' possession of the property on the

basis of the lease executed by Banarsi Das in their favour. They further prayed for a permanent injunction restraining the Defendant Banarsi Das

from ejecting them. A further prayer was added that as the Defendant was likely to get them ejected he be temporarily restrained from faking

possession of the property. The last prayer for temporary injunction was supported by an affidavit.

The trial Court of Munsiff issued a temporary injunction and a notice was issued to the Defendant to show cause why the temporary injunction may

not be made absolute. The Defendant reported that he had already obtained possession of the property and, therefore, the application for

temporary injunction was infructuous. The Plaintiffs filed another application praying that the Defendant be restrained by means of a temporary

injunction from executing any lease in favour of any other party in respect of the property in suit. The trial Court acceded to the request of the

Plaintiffs and issued a temporary injunction restraining the Defendant landlord from executing any lease in favour of any other party in respect of

that property. Against that order the landlord went up in appeal and the Additional District Judge vacated the order of the trial Court and dismissed

the application of the Plaintiffs for temporary injunction. The Plaintiffs have come up in revision to this Court against that order.

It has been contended on behalf of the Petitioners that the lower appellate Court had erred in vacating the order of the trial Court granting

temporary injunction in their favour. It is argued that the suit was under Order 21, Rule 103 and the Plaintiffs would suffer great loss if the property

is rented out to a third party by the Defendant. It is submitted that the suit of the Plaintiffs would become infructuous.

The provisions pertaining to temporary injunctions are contained in Order 39, Rules 1 and 2. The learned Counsel submits that Rule 1 of Order

39 would not be applicable but his case fell under Rule 2. Rule (2) Clause 1 of Order 39 reads as under:

In any suit for restraining the Defendant from committing a breach of contract or other injury of any land, 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.

The contention of the learned Counsel for the Petitioners is that the suit was for permanent injunction restraining the Defendant from committing

a breach of contract entered into with the Plaintiffs. This contention appears to be without force. It is true that the suit was for declaration and for

permanent injunction restraining the Defendant from taking possession of the property in dispute but when the Defendant reported that he had

already got possession of the property the suit for permanent injunction became infructuous. After the suit; for permanent injunction became

infructuous Rule 2 of Order 39, Code of Civil Procedure, had no application, i.e., the Plaintiffs could not ask for temporary injunction when their

suit for permanent injunction had become infructuous. Moreover, the Plaintiffs had to show in their plaint that they had a prima facie right to the

possession of the property before they could seek temporary injunction against the Defendant in respect of the property.

They have not filed any document showing that the property was rented out to them by virtue of a lease deed executed by the Defendant in their

favour. They have not even filed any receipt for the rent which they allege they had paid in advance to the Defendant landlord. They had raised

these objections before the executing Court that the rent deed was executed for a period of eleven months, that they had paid Rs. 300/ - rent for

eleven months at the rate of Rs. 30/ - p.m., but all these objections were overruled by the executing Court. In face of that order of the executing

Court and without any further proof of the fact that they had some right over the property in dispute, the trial Court was in error in issuing

temporary injunction in favour of the Plaintiffs. The Plaintiffs' case did not fall within the purview of Order 39, Rule 1 or 2, nor did they establish

any prima facie right over the property in dispute. In these circumstances the lower appellate Court was fully justified in vacating the order passed

by the trial Court granting temporary injunction in favour of the Plaintiffs.

In the result I see no good ground to interfere with the order of the lower appellate Court in revision. This application is dismissed with costs.