Pavadai alias Ramakrisknan vs Lakshmanasami alias Varadarasu

K.M. Natarajan, J.—This revision is directed by the plaintiff in O.S. 37 of 1987 against the order of injunction restraining him and his men

from interfering with the possession and enjoyment of the suit properties by the respondent herein, passed by the II Additional District Judge,

Pondicherry, on the application file 1 by the respondent herein (first defendant). The facts which are necessary for the disposal of this revision can

be briefly stated as follows:-The petitioner herein filed the suit O.S. 37 of 1987 on the file of the Sub Court Pondicherry, against the respondent

herein and six others, for declaration of title and recovery of possession. He also filed a petition I.A. 920 of 1987 for the relief of temporary

injunction restraining the respondent herein property (who is the first defendant) and his men or agents from plucking any coconut or tapping toddy

in the suit pending disposal of the suit. The case of the petitioner (hereinafter referred to as the plaintiff) is that he filed the suit O.S. 712 of 1977 on

the file of the Additional District Munsif, Pondicherry, for grant of permanent injunction in respect of 24 items. As against the judgment of dismissal

of the said suit, an appeal was filed before the first Additional District Judge, Pondicherry, in A.S. 160 of 1979 and the said appeal was partly

allowed and injunction was granted in respect of items 1 to 7 alone while the relief of injunction was negatived in respect of items 8 to 24.

Subsequently, he filed another suit in the Court of the Principal District Munsif, Pondicherry in O.S. 986 of 1980 for delivery of items 8 to 24 and

for mesne profits. The plaint was returned for presentation before the Sub Court, which is having the pecuniary jurisdiction, on 4-10-1983. About

four years later, the plaintiff filed the suit before the Sub Court in O.S. 37 of 1987. The First Additional Sub Judge, Pondicherry, allowed the

application filed by the plaintiff in I.A. 920 of 1987, on the ground that though in the earlier proceedings injunction was granted in respect of items

1 to 7 the plaintiff was directed to file a suit in respect of other items. The Sub Judge has also held that the plaintiff has submitted that he has got

title in respect of all the properties as declared by the District Court, Pondicherry, that the possession of the suit items by the first defendant is

illegal and that the plaintiff is entitled to recover the same. Since the first defendant is trying to damage the whole property, injunction is granted as

prayed for till the disposal of the suit. The first defendant, aggrieved by the said order preferred C.M.A. 27 of 1987. He did not apply for

suspension of the injunction order passed by the Sub Judge, but he filed the application I.A. 689 of 1987 for grant of injunction restraining the

plaintiff from interfering with his possession and enjoyment in respect of items 8, 10, 11, 13, 14, 15, 20, 21, 22, and 24 till the disposal of the

appeal on the ground that the plaintiff and his men are interfering with his possession of the said items. The learned II Additional District Judge

granted injunction as prayed for holding that since the suit itself is for declaration of title and recovery of possession, the lower court ought not to

have granted injunction in favour of the plaintiff as admittedly possession is with the first defendant. Aggrieved by the said order of injunction, this

revision is filed.

The learned counsel for the revision petitioner, Mr. T.R. Rajagopalan, submitted that when an injunction was granted against the first defendant

and in favour of the plaintiff and when that injunction was not suspended, the first defendant has no locus standi to file a petition for the relief of

injunction, that too in respect of a cause of action which arose after the appeal is filed, that as such the application for injunction filed by the first

defendant itself is not maintainable, that the court below erred in allowing the application and that the order is liable to be set aside. In support of

his contention, the learned counsel for the revision petitioner, Mr. T.R. Rajagopalan, drew my attention to the decision reported in Suganda Bai v.

Sulu Bai AIR 1975 Karnataka 137, wherein it was held-

A defendant can move for a temporary injunction against the plaintiff without filing a counter-claim only when, and where the relief claimed arises

out of plaintiff''s cause of action or is incidental to it.

It is observed in para 4 of the said case-

In the instant case, the cause of action for the plaintiff''s suit, as stated earlier, arose in the year 1970, whereas the cause of action for the

defendants arose in the year 1973. The two causes of action are different. Therefore, the courts below were wholly in error in granting temporary

injunction prayed for by defendant-1.

In that case, also it was a suit filed by the plaintiff for permanent injunction restraining the defendants from interfering with her possession on the

basis of the cause of action which arose in 1970. In 1973, the first defendant made an application for grant of temporary injunction under O.39,

Rr. 1 and 2, read with S. 151, C.P.Code, for the grant of injunction restraining the plaintiff from interfering with his possession. That application

was allowed. As against that order, a revision was filed as was done in this case. The same view was affirmed by the Calcutta High Court in Dr.

Ashis Ranjan Das Vs. Rajendra Nath Mullick, , and it was further held:-

There will be an injunction restraining the plaintiff from making any further constructions in the said plot till the disposal of the suit. In the event the

defendant makes a counter claim in the suit the defendant will be at liberty to apply for further interim orders.

So far as our High Court is concerned, we have got a decision in Sivakami Achi v. Narayana Chettiar 49 L.W. 441=A.I.R. 1939 Madras 495,

wherein it was held-

The words ''by any party'' used in O.39, R. 1 (e) include the plaintiff and hence an application under O.39, R. 1 (a) can be made on behalf of a

defendant.

In that case, the circumstance under which the defendant can make an application has not been considered. It is only a short one para judgment. It

has been held therein-

I would now draw his attention to the words ''by any party'' used in the section. They would include the plaintiff and if any such act is committed by

the plaintiff it is only the defendant who would have come to the court with a complaint.

The said judgment was rendered relying on the earlier decision in Karorichand v. Maharaj Bahadur Singh 1 Patna L.J. 560. That the defendant is

entitled to file an application is not disputed in view of the ratio laid down in the above decisions. It is clear that in a case where the defendant

makes a counter claim, it is open to him to file an application for grant of temporary injunction under O.39, Rr. 1 and 2, C.P.Code, or in a case

where the relief claimed arises out of the plaintiff''s cause of action or is incidental to it. But, in the instant case, as pointed out by the learned

counsel for the revision petitioner, Mr. T.R. Rajagopalan, the cause of action for the first defendant arose long after the grant of injunction against

the first defendant as it is seen from para 6 of the affidavit of the first defendant. It is stated therein-

I submit that taking advantage of the order of interim injunction granted in his favour, the respondent herein started giving trouble and causing

harassment and mental agony and also preventing me from enjoying the said items of properties by his illegal interference into my peaceful

possession and enjoyment of the above said items of properties.

It is also stated in the said affidavit that he has filed an appeal during the vacation in the High Court of Judicature and obtained an order of stay of

the lower court till 23.6.1987. Then it is clear that the first defendant should have applied for extension of stay before the appellate Court instead of

filing an injunction application in the lower court. In the circumstances, I find much force in the contention of the learned counsel for the revision

petitioner that the order of injunction granted by the court below is not sustainable. It is significant to note that in view of the finding of the District

Judge in the impugned order that the suit itself is for declaration of title and recovery of possession, that it implies that possession of the properties

had not been with the plaintiff and in view of the fact that injunction was granted in favour of the first defendant, no useful purpose would be served

by directing the District Judge to dispose of the appeal. Similarly, the first Additional Sub Judge granted injunction against the defendants

restraining them from plucking any coconut or tapping toddy in the suit tope pending disposal of the suit, on the ground that by doing so, they are

causing damage to the trees. It cannot be said that merely plucking coconuts from the coconut trees and tapping toddy, the defendants are causing

damages to the coconut trees. Further, there is nothing to substantiate the contention of the plaintiff. Hence, no useful purpose will be served by

wasting the time in these interlocutory applications filed by either party, as the suit itself is for recovery of possession on the basis of title. I feel that

in the interest of justice, it will suffice if the Sub Judge is directed to dispose of the suit itself at an early date and in the meantime directing the

parties to maintain status quo, to which course the parties have no serious objection.

In the result, the order passed by the District Judge in I.A. 689 of 1987 in C.M.A. 27 of 1987 is set aside and the parties are directed to maintain

the status quo and the revision is ordered accordingly. The first Additional Subordinate Judge, Pondicherry is directed to give priority to the

disposal of the suit, in any event to dispose of the suit within three months from this date of receipt of the order and the records from this Court.

The II Additional District Judge, Pondicherry is directed to despatch the records, if any, received from the trial court for within. No order as to

costs.