Tsering Narboo vs Tashi Phunchok & Anr.

A civil Suit came to be filed by the appellant before the District Judge, Leh seeking declaration to the effect that the plaintiff and the defendants

are cosharers, cosharers and in joint possession of land comprising in Khasra No. 698,701, 1184, 1185, 1408,Khewat No. Ill situated at

Skurbucan, Leh. Further declaration was sought that the appellant is owner in possession of land measuring 1 kanal 4 Marias, comprising in

Khewat No. 111, Khasra No. 1410 situate at Skurbucan, Leh on account of adverse possession claiming against the respondents for over 30

years.

Alongwith the suit an application for temporary injunction restraining defendant/ respondent No. 1 from interfering with the peaceful possession

of land under Khewat No. Ill, Khasra No. 1410 measuring 1 Kanal 4 Marias was filed.

The defendants in their written statement denied the title of the plaintiff over the suit land as a cosharer on the ground that he was not the son of

Late Tundup Namgial. They have also denied the plaintiff's possession over the suit land as claimed by him.

The application for seeking temporary injunction against the defendants/ respondents came to be decided by the learned District Judge, Leh on

11.08.2006. The learned District Judge did not find the petitioner entitled to the relief of injunction on the ground that there was no prima facie

case in his favour, except for the averments made by him in the plaint. The plaintiff/ petitioner claimed this land as in adverse possession against the

defendants.

It is important to mention that the application for temporary injunction was confined only to Khasra No. 1410 measuring 1 kanal 4 Marias. The

said application came to be dismissed.

During the pendency of the suit the defendants/ respondents filed an application against the plaintiff/ petitioner seeking a direction against the

plaintiff/ petitioner not to interfere with the peaceful possession over the land measuring 1 Kanal 4 Marias comprising in Khasra No. 1410.

The said application was allowed by the learned District Judge in which he restrained the petitioner/ plaintiff permanently from causing any type

of interference in the land measuring 1 Kanal 4 Marias comprised in Survey No. 1410 situated in village Skurbucan, Leh in cultivating possession

of defendant/ respondent No. 1 till final disposal of the suit. It was also directed that the defendant shall not change the nature of the suit property

till the final disposal of the suit. It is this order of the District Judge, Leh which is subject matter of challenge in this appeal.

Mr. Raina, learned counsel appearing for the petitioner submits that the application filed by the defendants/ respondents before the trial Court

under Order 39 Rule 1 & 2 of Code of Civil Procedure was not maintainable for the following reasons:

(i) That under Order 39 Rule1 (a) & (b) CPC the power to grant injunction on an application filed by a party in the suit is restricted only for

preventing the wasting, damaging, alienation, sale, removal of the property; There is no power vested with the trial Court to order stay of

dispossession of the defendant by the plaintiff in a suit filed by the plaintiff. In other words Mr. Raina states that no application for seeking stay of

dispossession by the defendants can be filed under order 39 Rule 1 (a) (b) (c) of Code of Civil Procedure.

(ii) The second ground is that assuming but not admitting that there is power to grant injunction even then the same cannot be done on the

application filed by the defendant as he cannot claim any right on the cause of action of the plaintiff.

In support of his arguments Mr. Raina, learned counsel for the petitioner has cited the cases (i) Suganda Bai Vs. Sulu Bai and others, AIR 1975

Karnataka 135; and (ii) Dr/Ashis Ranjan Das Vs. Rajendra Nath Mullick, AIR 1982 Cal 529.

On the other hand Mr. L. K. Sharma, learned counsel appearing for the respondents states that the Court has the power to grant injunction to

the defendant in a suit filed by"" the plaintiff, if not under Order 39. Rule 1 (a) (b), but under section 151 CPC. In support of his arguments Mr.

Sharma, learned counsel for the respondents cited M/s Anand Associates Vs. Nagpur improvement Trust, AIR 2000 SC 3350; Kisan Uchattar

Madhyamik Vs. IIIrd Addl District Judge, AIR 1989 All 168; & Vincent and others Vs. Aisumma, AIR 1989 Kerala 8.

I have heard the learned counsel for the parties and perused the record.

A bare perusal of order 39 Rule 1 (a), (b) and (c) reveals that the Court has the power to grant an order of injunction under clause (a) on an

application filed by a party to the suit, if it is found that the property is in dispute is in danger of being wasted, damaged or alienated by any party to

the suit or wrongfully sold in execution of a decree. Clause (b) empowers the Court to issue temporary injunction in case the conditions indicated in

clause (a) are satisfied. Clause (b) also empowers to grant the order of injunction if the defendant threatens or intends to remove or dispose of his

property with a view to defrauding his creditors. It is clear from the conjoint reading of clauses (a) and

(b) that power to grant injunction on an application filed by the defendant is restricted to the extent indicated hereinabove and none other. This fact

is further corroborated when we examine the clause (b) in totality. It revels that the power to grant injunction against dispossession can only be

invoked by the plaintiff and not by the defendant.

The Court can pass an order of injunction in the mandatory form also, if the facts so permit. So from the conjoint reading of the above said

provisions it is clear that no order of injunction to restrain the plaintiff to dispossessing the defendant in a suit filed by the plaintiff can be passed.

Further the defendant can seek temporary injunction against the plaintiff even without filing counter claim only when the relief claimed arises out of

plaintiff's cause of action. The remedy for the defendant in that case may be to file a fresh suit. The other kind of injunction which can be granted

under clause (b) of Rule 1 is restricted to dispossession the plaintiff may face from defendant in respect of any property in dispute. Clause (c) also

empowers the Court to grant temporary injunction in case the defendant threatens to dispossess the plaintiff or otherwise causes injury to the

plaintiff in relation to any property in dispute in the suit.

The reading of the provisions mentioned above clearly restricts the Court's power under O.39 Rl (a) (b) and (c) in respect of threat of

dispossession to the plaintiff only. If the legislature intended to confer power on the court to grant temporary injunction in favour of the defendants

in respect of his dispossession, same would have been incorporated in the statue. The statute clearly omits this rightly so because while granting

order of temporary injunction in a suit filed by the plaintiff seeking protection of property, the defendant cannot seek an order of injunction against

dispossession in the said suit.

Argument of Mr. L.K. Sharma, learned counsel for the respondents is that even if the power to grant injunction is not traceable under order

39, the Court has the power under section 151 of Civil Procedure Code. I am not in agreement with this proposition. The Court cannot take

recourse under section 151 CPC on an application which is not maintainable under Order 39 R l(a) (b) (c). The inherent power can be exercised

only to supplement any eventuality which is not covered under Order 39 R1 (a) (b) (c) and not in derogation of the statute. Granting of an

injunction against dispossession of defendant is clearly barred by O.39 Rule (1), (b) and (c). O 39 Rule 1 CPC prescribes circumstances in which

temporary injunction can be issued. Ordinarily the court is not to use its inherent powers to make necessary orders in the interest of justice. Civil

court generally has no inherent jurisdiction if the case is not covered under O. 39 Rule 1 of CPC to issue temporary injunction. Inherent powers

are being exercised by the court in very exceptional circumstances for which (Sic) Code lays down no procedure. There is bar under 0. 39 to

grant temporary injunction against defendant whose possession is threatened by the plaintiff.

The next argument of Mr. Raina is that the respondents/ defendants cannot claim any right on the cause of action accrued to the plaintiff.

According to Mr. Raina, he had filed a suit for declaration claiming to be owner in possession of land measuring 1 Kanal 4 Marias on account of

adverse possession claimed over the plaintiff for over 30 years. It is his claim of possession which he wanted to protect by filing an application for

temporary injunction. The defendants on the other hand state that they are in possession of the property. It is not in dispute that the petitioner's

application for temporary injunction has been dismissed. It is submitted that the cause of action arose to the plaintiff in the year 2006, whereas the

cause of action arose to the defendant in the year 2007. Both these causes of action are different. There is no dispute with respect to the dates

when the plaintiff initially filed an application for injunction and when the defendant filed the application before the Court below. So admittedly, the

defendants could not have filed an application on the cause of action of the plaintiff which arose in 2006.

Mr. Sharma, learned counsel for the defendants/ respondents states that by filing a separate suit, there will be multiplicity of proceedings. He

further submits that the matter in issue is directly and substantially the same as filed by the plaintiff, as such, filing such a suit would be barred under

section 10 CPC. This ground is also not tenable because the suit of the plaintiff is that he claims adverse possession against the defendant, whereas

the defendant claims relief of injunction against the plaintiff. So this argument is also not sustainable.

For the foregoing reasons, I allow this appeal and set aside the order passed by District Judge, Leh and dismiss the application seeking grant

of temporary injunction filed by the defendant.

Nothing stated hereinabove shall be treated as an expression of opinion of the merits of the suit pending before the trial court.