Smt. Ambarain and Another vs Durga Das and Others

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

appeal of the Defendants vacating the order of Injunction passed against them for executing the decree for ejectment passed against Defendant

No. 3. The facts which gave rise to this revision application, briefly stated, are these:

Defendants Nos. 1 and 2 purchased a house and vacant site from Defendants Nos. 4 to 7 by virtue of sale deeds dated 1-3-1962 and 24-5-

1962. Defendants 1 and 2 fixed a suit for ejectment against Mst. Kamoon, Defendant No. 3 in the Court of Sub Judge (A. D. M). Jammu. A

compromise was effected between the parties and on the basis of the compromise the suit -was decreed against Kamoon. Defendants Nos. 1 and

2 took, out execution of the decree against Defendant No. 3. A separate suit was filed by the Plaintiffs, Mst. Ambarain and the Kattan Singh for

declaration that they were share-holders in the property sold by virtue of the sale deeds executed by Defendants Nos. 4 to 7 in favour of

Defendants Nos. 1 and 2 and for cancellation of those sale deeds.

The Plaintiffs suit was resisted by Defendants Nos. 1 and 2 on the ground that Defendants Nos. 4 to 7 alone were owners of the property which

was sold in their favour and that the Plaintiffs had no interest In that property. The Plaintiffs filed an application in the trial Court that Defendants

Nos. I and 2 be restrained from executing the decree against Defendant No. 3 as also from constructing any house on the vacant site during the

pendency of their suit. The trial Court of City Judge, Jammu, after considering the evidence allowed the Plaintiffs application and Issued injunction

restraining Defendants Nos. 1 and 2 from executing the decree against Defendant No. 3 and further restraining (hem from putting up any

construction on the vacant site, during the pendency of the suit. The Defendants appealed and the Additional District Judge allowed their appeal to

the extent that injunction regarding the execution of decree was vacated, but the order of the trial Court restraining Defendants Nos. 1 and a from

raising any construction on the vacant site was maintained. The Plaintiffs have come up in revision to this Court against that order.

It is urged on behalf of the Petitioners that the lower appellate court ought not to have vacated that injunction restraining the Defendants Nos. 1

and 2 from executing the decree for ejectment against Mst. Rampon, Defendant No. 3. It is argued that if In execution of that decree possession of

the house is taken by Defendants Nos. 1 and 2 the Plaintiffs will have to add furtherer life of possession in their suit and there by they will be put to

great inconvenience and expense. It is contended that in order to save the Plaintiffs from the trouble and expense which would be caused to them if

possession of the house is taken by Defendants Nos. 1 and 2 in execution, of their decree the lower appellate court ought not td have vacated the

Injunction res-training Defendants Nos. 1 and 2 from executing the decree.

I have gone through the order of the lower appellate Court. It has relied on a ruling of this Court, Rattan Chand Jai Gopal v. Mian Saifud Din,

AIR 1961 J&K 29 wherein it has been held that the exercise of a valid legal right obtained by a decree of a court cannot be held to construe

.commission of Injury of any kind within the meaning of Order 39, Rule 2 Sub Clause (1). In this ruling it has been further held that courts have got

no inherent power to grant temporary injunction.

Another authority has been cited at the bar which supports this view: Ganpati Chintaman Vs. Shiv Ram Damodar and Others, . In this ruling it has

been laid down that where a decree has been. passed by a Court of competent jurisdiction in favour of a party. principles of justice require that he

should not be deprived of the fruits of his decree pending decision of an independent suit relating to the same property which could but was not

filed till the former litigation was brought to its close. It was held In this case that the execution of the decree could not be stayed by injunction

pending decision of the suit.

In the case decided by this Court a possessor mortgagee had taken out execution of a decree for ejectment against his tenant and an Injunction

was sought by the tenant restraining the possessory mortgagee from executing the decree In a suit instituted by him for redemption, it was held by

this Court that injunction should not be granted depriving the possessor mortgagee (decree-holder) from the fruits of his decree, as the judgment-

debtor would not suffer any irreparable Injury if the decree is executed against him. But the facts of the instant case are quite different from those of

the case referred to above.

In the present case the Plaintiffs who sought In-junction claim an Interest in the property In regard to which a decree for ejectment is being

executed as they allege that they will be put to a great expense if possession is delivered under the decree to Defendants Nos. 1 and 2. The

Plaintiffs will have to add a further relief for possession and will have to pay additional court-feet if possession is delivered to Defendants Mos. I

and 2 in execution of the decree. The question for consideration is whether the injury contemplated by the Plaintiffs would be sufficient to induce

the Court to grant injunction in favour of the Plaintiffs against Defendants Nos. 1 and 2 Restraining them from executing the. decree for ejectment

against Defendant No. 3. It is true that such an injury would not come within the four comers of Order 39, Rule 1, CPC but we have to see

whether the subordinate court is competent under its inherent powers to grant injunction in favour of a plantation in order to save him from such an

injury.

In a recent case decided by the Supreme Court, Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, their Lordships observed as

follows;

There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue an order of temporary injunction if the

circumstances do not fall within the provisions of C. XXXIX cf the Code: Vadapalli Varadacharlu Vs. Khandavilli Narasimha Charlu, , N.

Govindarajulu Nayudu Vs. Imperial Bank of India, ; Karuppayya Nadar through his authorised agent Ratnasami Nadar Vs. Ponnuswami Nadar

and Another, (2); Murugesa Mudali Vs. Angamuthu Mudali, and Subramanian v. Seetarama AIR 1949 Mad 104. The other view is that a Court

can issue an interim injunction under circumstances which are not covered by 0. XXXIX of the Code, if the Court is of opinion that the interests of

justice require the issue of such interim injunction: Dhaneshwar Nath Tewari Vs. Ghanshyam Dhar Misra, ; Firm Bichchha Ram Babu Ram Vs.

Firm Baldeo Sahai Suraj Mal, ; Bhagat Singh v. Jagbir Sawhney AIR 1941 Cal 370 and Chinese Tannery Owners' Association and Others Vs.

Makhan Lal and Others, . We are of opinion that. the latter view is correct and that the Courts have inherent Jurisdiction 1o issue temporary

injunctions in circumstances which are not covered by the provisions of 0. XXXIX, CPC There is no such expression in Section 94 which

expressly prohibits the issue of a temporary injunction in circumstances not covered by 0. XXXIX or by any rules made under the Code. It is well

settled that the provisions Of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible

circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression if it is so

prescribed is only this that when the rules prescribe the circumstances in which the temporary Injunction can, be Issued, ordinarily the Court is not

to use its Inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring

it within the prescribed rule. If the provisions o Section 94 were not there in the Code, the Court could still issue temporary injunctions, but It could

do that in the exercise of its inherent jurisdiction. No party has a right to Insist on the Court's exercising that jurisdiction and the Court exercises Its

inherent Jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence I of the exercise of the

power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of

the Court to exercise its inherent power.

In the instant case the Plaintiffs came to the Court and prayed for temporary injunction on the ground that they would be put to great expense if

they have to add a further prayer for possession after the ejectment decree has been executed by Defendants Nos. 1 and 2. This plea of the

Plaintiffs found favour with trial Court and a temporary injunction, was granted in their favour restraining Defendants Nos. 1 and 2 from executing

the decree for ejectment during the pendency of the suit. The lower appellate Court merely expressed the view taken by this Court that

subordinate Courts have no Inherent power to grant temporary injunctions. But In face of the ruling of the Supreme Court the view taken by this

Court cannot be sustained. Court has Inherent power to grant temporary injunction when it Is fully satisfied that it would be in the interests of

Justice to do so. In the present case there were sufficient grounds for issue of temporary injunction by the trial court under its inherent powers. I

therefore, allow this revision application, set aside the order of the lower appellate Court and restore that of the trial Court. In the circumstances of

the case, I leave the parties to bear their own costs in this Court.