IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 05TH DAY OF SEPTEMBER, 2014

P RESENT

THE HONBLE MR. JUSTICE N. KUMAR

THE HONBLE MR. JUSTICE B.S.PATIL

AND

THE HONBLE MRS. JUSTICE RATHNAKALA

WRIT PETITION NO.58906/2013 (GM-CPC)

&
WRIT PETITION NO.16412/2014 (GM-CPC)

W.P.No.58906/2013 (GM-CPC)
BETWEEN:

1. SMT.SHAKUNTHALAMMA
W/O CHINNAPPA,
AGED ABOUT 52 YEARS,

2. SMT.GIRIJA
W/O VENKATASWAMY,
AGED ABOUT 31 YEARS

3. SMT.SUNITHA
W/O LATE SURESH,
AGED ABOUT 31 YEARS,
 2

ALL ARE R/o SIDDAPURA VILLAGE,

CHITRADURGA TALUK,
CHITRADURGA DISTRICT-577 520 PETITIONERS

(BY SRI.VASANTH V. FERNANDES A/W

SRI R.GUNASHEKAR, ADV.)

AND:

1. SMT.KANTHAMMA,
W/O LATE BHEEMANNA,
AGED ABOUT 72 YEARS,

2. SRI.RAMANJANEYA,
S/O BHEMMANNA,
AGED ABOUT 40 YEARS
ELECTRICAL CONTRACTOR.

BOTH RESIDING NEAR OLD BUS STAND,

SRISHAILA TALKIES ROAD,
HIRIYUR TOWN AND TALUK,
CHITRADURGA DISTRICT.
PIN CODE 577 598.

3. SRI SHIVASHANKARAPPA
S/O SEEBEERAPPA,
AGED ABOUT 50 YEARS,
AGRICULTURIST & BUSINESSMAN,
TAGARANAHATTY VILLAGE,
CHITRADURGA TALUK,
CHITRADURGA DISTRICT,
PIN CODE 577 501 RESPONDENTS

(BY SRI B.M.SIDDAPPA AND

SRI HARISH N.R., ADVS. FOR R3;
R1 & R2 NOTICE ISSUED)
 3

THIS WRIT PETITION IS FILED UNDER ARTICLES 226

AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DT.27.06.2013 PASSED BY THE
LEARNED PRINCIPAL SENIOR CIVIL JUDGE & CJM AT
CHITRADURGA, IN M.A.NO.12/2013 AS PER ANNX-P &
THEREBY CONFIRM THE ORDER DT.16.01.2013 PASSED IN
O.S.NO.499/2010 ON I.A.NO.11 IN RESPECT OF THE SUIT
SCHEDULE PROPERTY BY THE LEARNED I ADDITIONAL CIVIL
JUDGE (JR. DVN.) [NOW THE CIVIL JUDGE] AT CHITRADURGA
AS PER ANNX-M.

W.P.NO.16412/2014 (GM-CPC)
BETWEEN:

1. SMT.SANNERAMMA
W/O LATE THIMMANNA,
AGED ABOUT 62 YEARS,

2. THIMMANNA
S/O LATE THIMMANNA,
AGED ABOUT 41 YEARS,

3. JAYANNA
S/O LATE THIMMANNA,
AGED ABOUT 37 YEARS,

4. CHANDRANNA
S/O LATE THIMMANNA,
AGED ABOUT 34 YEARS,

ALL ARE AGRICULTURISTS,

R/AT HOLUGONDANAHALLY VILLAGE,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 522 PETITIONERS

(BY SRI KENCHEGOWDA, ADV.)

 4

AND:

1. BASAVARAJAIAH
S/O MATADA VEERABHADRAIAH,
AGED ABOUT 57 YEARS,
2. ERAIAH
S/O LATE CHANDRASHEKARIAH,
AGED ABOUT 46 YEARS,

3. SHANTHAIAH
S/O LATE CHANDRASHEKARIAH,
AGED ABOUT 44 YEARS,

4. SMT. SIDDAMMA
W/O LATE CHANDRASHEKARIAH,
AGED ABOUT 67 YEARS,

5. SMT. GANGAMMA
W/O KOTRAIAH,
AGED ABOUT 42 YEARS,

6. M.C. NAGARAJAIAH
S/O LATE CHANDRASHEKARAIAH
AGED ABOUT 40 YEARS,

7. M.C. THIPPESWAMY
S/O LATE CHANDRASHEKARAIAH
AGED ABOUT 39 YEARS,

8. SMT. NAGARATHNAMMA
D/O MATADA VEERABHADRAIAH,
AGED ABOUT 67 YEARS,

9. M.C. SIDDAIAH
S/O LATE CHANDRASHEKARAIAH,
AGED ABOUT 35 YEARS,
 5

10. M.C. CHELUMESWAMY

S/O LATE CHANDRASHEKARAIAH,
AGED ABOUT 37 YEARS,

RESPONDENT NOS.1 TO 10 ARE

AGRICULTURIST, R/AT HALAGONDANAHALLY VILLAGE,
PARASHURAMPURA HOBLI, CHALLAKERE TALUK,
CHITRADURGA DISTRICT 577 522.

11. SMT. PREMA

W/O M.C. RUDRAMUNI,
AGED ABOUT 60 YEARS,

12. MANJANNA
S/O LATE M.C. RUDRAMUNI,
AGED ABOUT 40 YEARS,

13. SANTHOSH
S/O LATE M.C. RUDRAMUNI,
AGED ABOUT 37 YEARS,

RESPONDENT NOS.11 TO 13 ARE

R/AT GANDHINAGAR,
1ST CROSS, HOUSING BOARD COLONY,
MIG 3(A), BELLARY TOWN,
BELLARY DISTRICT 583 101
RESPONDENTS

(BY SRI R.B.SADASIVAPPA, ADV. FOR R-1;

R2 TO R13 NOTICE IS DISPENSED WITH
V/O DTD:27/6/2014)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226

AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE IMPUGNED ORDER DTD:24.01.2014 IN
M.A.NO.16/2013 PASSED BY THE LEARNED PRINCIPAL
 6

DISTRICT AND SESSIONS JUDGE AT CHITRADURGA VIDE

ANNEX-A AS ILLEGAL, BY ISSUING A WRIT OF CERTIORARI.

THESE WRIT PETITIONS COMING ON FOR ORDERS THIS

DAY, N. KUMAR, J., MADE THE FOLLOWING: -

ORDER

These writ petitions are placed before us by the Honble

Chief Justice on the request of the Learned Single Judge to refer

the following question to a larger Bench for consideration:

Whether the defendant in a suit for declaration and

injunction can maintain an application for injunction
under Order 39 Rule 1(c) of the Civil Procedure Code,
1908?

2. Before answering the above question, it is useful to

briefly refer to the facts giving rise to the reference.

3. W.P.No.58906/2013 is filed by the plaintiffs in

O.S.No.499/2010, a suit instituted on 02.12.2010 before the

Principal Civil Judge (Jr. Dn.), Chitradurga for permanent

injunction restraining the defendants from interfering with their

peaceful possession and enjoyment of the suit property. The

 7

plaintiffs also sought interim order of temporary injunction by

filing an application U/o XXXIX rules 1 and 2 of CPC but, the

court passed an exparte order on 03.12.2010 to maintain status-

quo, till appearance of the defendants. On service of summons,

the defendants appeared on 01.0.2011 and the 3rd defendant, on

09.08.2012, filed I.A. No.11 U/o XXXIX rules 1 and 2 of CPC

seeking an order of temporary injunction restraining the plaintiffs

from disturbing his peaceful possession and enjoyment of the suit

property. The learned Civil Judge by order dated 16.01.2013

dismissed I.A.No.11 filed by the 3rd defendant U/o XXXIX Rules 1

and 2 of CPC. Aggrieved by the same, the 3rd defendant preferred

M.A.No.12/2013 and the learned Civil Judge (Senior Division),

Chitradurga, while allowing the appeal set aside the order of

dismissal of I.A.No.11 and granted an order of temporary

injunction against the plaintiffs. Aggrieved by the said order the

plaintiffs have filed the writ petition.

4. W.P.No.16412/2014, is filed by the plaintiffs in

O.S.No.19/2012, a suit filed on 18.06.2012 for a declaration that

 8

they are the lawful owners in peaceful possession and enjoyment

of suit properties and for a decree of permanent injunction. The

plaintiffs had also maintained an I.A. for temporary injunction

restraining the defendants from interfering with their peaceful

possession and enjoyment of the suit property. After service of

summons, the defendants entered appearance. On 13.06.2013,

the 1st defendant too filed an I.A. U/o XXXIX Rules 1 and 2 of

CPC for an order of temporary injunction to restrain the plaintiffs

from interfering with his peaceful possession and enjoyment of

item No.1 of the suit schedule. The trial Court after hearing the

parties, while dismissing the I.A. for temporary injunction filed

both by the plaintiffs and the 1st defendant, directed them to

maintain status-quo in respect of the suit schedule properties till

the disposal of the suit. Aggrieved by the dismissal of I.A. No.7,

the 1st defendant preferred M.A.16/2013 before the District

Court, Chitradurga. The Principal District and Sessions Judge,

Chitradurga by order dated 24.01.2014, allowed the appeal, set

aside the order of the trial Court and granted temporary

injunction restraining the plaintiffs from interfering with the 1st

 9

defendants peaceful possession and enjoyment of 1st item of the

suit schedule, by allowing I.A. No.7. Aggrieved by the same the

plaintiffs have preferred the writ petition.

5. The parties are referred to as per their original rank

before the trial court for the sake of convenience.

6. Learned Counsel for the plaintiffs submitted that

Section 94 of CPC r/w Order XXXIX Rules 1 and 2 of CPC confers

power on the Civil Court to grant an order of temporary

injunction. While the defendant in a suit is conferred with right to

seek temporary injunction in a case falling under Clause (a) of

Order XXXIX rule 1 of CPC, no such right is conferred on him in

the cases falling under Clause (b) and (c) thereof. The civil court

no doubt, has inherent powers to pass such orders as may be

necessary to meet the ends of justice or to prevent the abuse of

process of Court, but the same cannot be exercised when a case

is covered by specific provisions of CPC. In the case on hand the

defendants stand is covered U/o XXXIX Rule 1(c) where no right

 10

is conferred on him to a relief of temporary injunction and

therefore the Court could not have granted the said relief in

exercise of its inherent powers. The Appellate Court has

committed a serious error in granting an order of injunction in

favour of the 1st defendant in O.S.19/12 while allowing

M.A.16/2013.

7. Per contra, learned Counsel for the defendants

supported the order passed by the Appellate Court by arguing

that when the case of the defendant does not fall U/o XXXIX Rule

1(c) of CPC and the circumstances call for exercise of inherent

powers, the Court could exercise the same to grant the relief and

the Appellate Court has rightly granted temporary injunction in

favour of the 1st defendant as prayed.

8. For answering the question referred to this Bench it

is necessary to refer to the relevant statutory provisions of the

Code of Civil Procedure, 1908 (hereinafter referred to as the

Code).
 11

9. Section 94 under Part-VI of the Code dealing with

supplementary proceedings, sets out the nature of order that a

court may pass in order to prevent justice being defeated and it

reads as under:

Section 94. Supplemental proceedings - In order

to prevent the ends of justice from being defeated the
court may, if it is so prescribed

(a) issue warrant to arrest the defendant and bring

him before the court to show cause why he should not
give security for his appearance, and if he fails to
comply with any order for security commit him to the
civil prison;

(b) direct the defendant to furnish security to produce

any property belonging to him and to place the same
at the disposal of the court of order the attachment of
any property;

(c) grant a temporary injunction and in case of

disobedience commit the person guilty thereof to the
civil prison and order that his property be attached
and sold;
 12

(d) appoint a receiver of any property and enforce the

performance of his duties by attaching and selling his
property;

(e) make such other interlocutory orders as may

appear to the court to be just and convenient.

10. Clause (c) of Section 94 of the Code states that a

Court may grant a temporary injunction there under, only if it is

so prescribed. Section 2(16) of the Code defines the word

Prescribed to mean Prescribed by the Rules. Therefore

temporary injunction may be granted U/s 94(c) of the Code only if

a case satisfies the requirements of the Rules 1 and 2 of Order

XXXIX of the Code and not otherwise. Therefore, when a matter

comes before the Court, it has to examine the facts and ascertain

whether the conditions of Section 94 r/w order XXXIX Rules 1

and 2 of the Code are satisfied and only thereafter grant

appropriate relief.

11. The relevant rule relating to grant of temporary

injunction is also culled out for easy reference and it may be

 13

pertinent to point out at this juncture itself that clause (c) Rule 1

of Order XXXIX of the Code was inserted by Act No.104/1976

w.e.f. 01.02.1977.

1. Cases in which temporary injunction may be

granted.- Where in any Suit it is proved by affidavit or
otherwise

(a) that any property in dispute in a suit is in

danger of being wasted, damaged or alienated
by any party to the suit, or wrongfully sold in
execution of a decree, or

(b) that the defendant threatens, or intends, to

remove or dispose of his property with a view to
defrauding his creditors,

(c) that the defendant threatens to dispossess the

plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in the suit.

The court may by order grant a temporary

injunction to restrain such act, or make such
other order for the purpose of staying and
preventing the wasting, damaging, alienation,
sale, removal or disposition of the property or
 14

dispossession of the plaintiff, or otherwise

causing injury to the plaintiff in relation to any
property in dispute in the suit as the Court
thinks fit, until the disposal of the suit or until
further orders.

(Underlining by us)

12. A careful reading of the aforesaid provision discloses

that the Court is empowered to grant three types of orders under

three different and distinct situations. Firstly when the property

in dispute is in danger of being wasted, damaged or alienated or

wrongfully sold in execution of a decree, temporary injunction to

prevent the same can be granted. The second situation arises

when the disputed property is under the threat of being removed

or disposed of by the defendant with the intention of defrauding

his creditors who include the plaintiff also. The third situation is

when the defendant threatens to dispossess the plaintiff or

otherwise causes injury to the plaintiff in respect of disputed

property.
 15

13. Clause (a) of Order XXXIX rule 1 CPC provides that

where in any suit it is proved by affidavit or otherwise, that any

property in dispute in a suit is in danger or being wasted,

damaged or alienated by any party to the suit, or wrongfully

sold in execution of a decree, the Court may by order grant a

temporary injunction to restrain such act, or make such other

order for the purpose of staying and preventing the wasting,

damaging, alienation, sale, removal or disposition of the property.

The reason is obvious. After institution of the suit, the plaintiff

may act detrimental to the interest of the defendant in the subject

matter of the suit by allowing it to be wasted or damaged or

alienated and in such an event, the defendant can take recourse

to making application U/o XXXIX Rule 1(a) CPC.

14. What Clause (b) of Order XXXIX rule 1 of CPC

envisages is that a plaintiff can seek temporary injunction when

there is a threat by the defendant to dispose of the property with

a view to render the decree that may be passed in the suit useless

or infructuous. Similarly, under Clause (c) of order XXXIX rule 1

 16

CPC whenever the defendant threatens to dispossess the plaintiff

or otherwise cause injury to the plaintiff in relation to any

property in dispute in the suit, the Court may restrain

dispossession of the plaintiff until the disposal of the suit or until

further orders.

15. The Legislature has consciously used the words any

party to the suit in Rule 1(a) of order XXXIX CPC but the same is

conspicuously missing in Clauses (b) and (c). However, the words

the defendant threatens appearing in Clauses (b) and (c) of rule

1 of order XXXIX CPC make it clear that the Court can grant an

order of temporary injunction only in favour of the plaintiff

because the Legislature has expressly not included the words

plaintiff threatens and also not used the words any party to the

suit in these clauses.

16. In fact, this Court had an occasion to consider the

scope of Clauses (a), (b) and (c) of Order XXXIX Rule 1 CPC in the

case of Veerabhadrappa vs- Mayappa reported in ILR 1993

 17

KAR 161 has pointed out the distinction between them in the

following words:

These provisions make it abundantly clear that it is

only under Sub-clause (a) of Order 39 Rule 1 CPC that
any party to the suit could be restrained by means of
an order of temporary injunction, which clearly pre-
supposes that either the plaintiff or the defendant
could file the application against the other party under
this particular sub-clause. The other two sub-clauses
viz., (b) and (c) of Order 39 Rule 1 CPC as also Order
39 Rule 2 CPC enable the Court to grant injunction
against the defendant restraining him from committing
the several acts mentioned therein. The word any
party occurring in Sub-rule (a) of Rule 1 does not find
a place in theses Rules. Therefore it is clear that it is
only the plaintiff that could seek redress under these
Rules against the defendant. Having regard to the
plain language of these Rules, by no means could it be
contended that defendant is entitled to obtain an order
of injunction against the plaintiff under these very sub-
rules. A faint attempt was made by the learned
Advocate for respondent by relying upon the
observations made by the Supreme Court in the
Decision reported in MANOHAR LAL CHOPRA V. RAI
 18

BAHADUR RAO RAJA SETH HIRALAL (AIR 1962 SC

527), wherein it has been mentioned that there is
nothing in Order 39 Rules 1 and 2 which provides
specifically that a temporary injunction is not to be
issued in cases which are not mentioned in those
Rules. This observation of the Supreme Court has to
be read in the context of the earlier and later
observations made therein wherein their Lordships
have discussed the aspect that the Court has always
got inherent powers to grant injunction under Section
151 CPC. It is in that context that in Paragraph 19 it
has been stated that the particular Rules do not
provide that no injunction should be issued in cases
which are not mentioned therein. By these
observations it cannot be said that the Court could still
grant injunction under those very Rules themselves in
respect of cases which do not fall under the said
Rules. Therefore, the contention that even under these
sub-rules viz., Sub-rule (b) and (c) of Rule 1 or Rule 2 of
Order 39 CPC a defendant can obtain an order of
injunction against the plaintiff cannot be accepted. It
is not the case of the defendant that the case put
forward by him fits into Sub-rule (a) of Order 39 Rule 1
CPC wherein any party could be restrained by grant of
an injunction.
 19

17. Bombay High Court too in the case of Nanasaheb

vs- Dattu & Others reported in AIR 1992 BOMBAY 24 has

expressed similar views as under:

. . . . . . Provisions of Rule 1(a), 1(b) and 1(c) are

intended to meet different situations and different
purposes. Rule 1(a) speaks about the injunctions
when the property is in danger of waste, damage or
alienation. Whereas Rule 1(b) speaks about
threatening removal or disposal from the property with
a view to defraud his creditors and Rule 1(c) speaks
about threatening dispossession or any other injury in
relation to the property. Prayer for injunction
restraining other party from obstructing enjoyment of
well water would be covered by Rule 1(c) of Order 39.

Mischief to be prevented by the temporary

injunction in respect of situations under Clauses (b)
and (c) of Rule 1 and under Rule 2 should be that of
the defendant. However, mischief to be prevented by
the temporary injunction in situations under Clause (a)
of Rule 1 can be from either of the parties. A clear
distinction appears to have been deliberately made in
 20

framing this rule by authorizing in respect of the

situations listed in Clause (a) of Rule 1 on one hand
and Clauses (b) and (c) of Rule 1 and Rule 2 on the
other hand. In respect of situations covered by the
first clause, injunctions can be granted in favour of
either of the parties whereas in respect of situations
covered by other clauses injunction can be granted
only in favour of the plaintiff and not in favour of the
defendant.....

18. From the above, it is clear that in a suit filed by the

plaintiff, it is open to the defendant to file an application only U/o

XXXIX Rule 1(a) of CPC seeking temporary injunction and the

Court on being satisfied that a case is made out for grant of such

injunction, can grant the same in its discretion. But, the

defendant cannot maintain an application U/o XXXIX rule 1(b)

and (c) of CPC at all.

SCOPE OF SECTION 151 CPC

19. The next point would be, when the defendant is not

entitled to the relief of injunction against the plaintiff in a case

 21

falling U/o XXXIX rule 1 clause (c) CPC whether the Court could

grant the relief in exercise of its inherent jurisdiction?

20. The defendants have placed reliance upon the

judgments of the Apex Court in support of the contention that in

the absence of specific provision the court can exercise its power

U/s 151 of the Code and grant relief to the defendant or any party

to the suit. For better appreciation of this contention it is

necessary consider the law laid down by the Apex Court in a

chronological order and before that, it is useful to refer to Section

151 CPC which reads as under:

Sec.151. Saving of inherent powers of Court-

Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court to
make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court.

21. In para 8 of the judgment in Padam Sen and

Another vs- State of Uttar Pradesh (AIR 1961 SC 218) the

Apex Court has held as under:

 22

The inherent powers of the Court are in addition

to the powers specifically conferred on the Court by the
code. They are complementary to those powers and
therefore it must be held that the Court is free to
exercise them for the purposes mentioned in S. 151 of
the Code when the exercise of those powers is not in
any way in conflict with what has been expressly
provided in the Code or against the intentions of the
Legislature. It is also well recognized that the inherent
power is not to be exercised in a manner which will be
contrary to or different from the procedure expressly
provided in the Code.

22. While making it clear that though the Court has

inherent power to make such orders, as may be necessary for the

ends of justice or to prevent abuse of the process of the court, the

Supreme Court has placed three restrictions on exercise of

inherent power by the court namely,

(1) Firstly, the inherent power should not be

exercised in any way in conflict with what has
been expressly provided in the Code;
 23

(2) Secondly, the power cannot be exercised

against the intention of the legislature; and

(3) Thirdly, it shall not be exercised in a manner,

which would be contrary to or different from the
procedure expressly provided in the Code.

23. Subsequently, the Apex Court in the case of

Manohar Lal Chopra vs- Rai Bahadur Rao Raj Seth Hiralal

reported in AIR 1962 SC 527 after taking note of the divergent

views by various High Courts in the country, has held as under:

18. 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
Order XXXIX of the Code. The other view is that a
Court can issue an interim injunction under
circumstances which are not covered by Order XXXIX
of the Code, if the Court is of opinion that the interests
of justice require the issue of such interim injunction.
We are of opinion that the latter view is correct and
that the Courts have inherent jurisdiction to issue
temporary injunctions in circumstances which are not
 24

covered by the provisions of O.XXXIX, Code of Civil

Procedure. There is no such expression in Section 94
which expressly prohibits the issue of a temporary
injunction in circumstances not covered by Order
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 of 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 of the exercise of the power of the Court to
 25

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.

19. There is nothing in Order XXXIX, rules 1 and 2,

which provide specifically that a temporary injunction
is not to be issued in cases which are not mentioned in
those rules. The rules only provide that in
circumstances mentioned in them the Court may grant
a temporary injunction.

24. Further in para 21, the Apex Court also made

reference to Padam Sens case After referring to the observations

which is as below:

These observations clearly mean that the inherent

powers are not in any way controlled by the provisions
of the Code as has been specifically stated in S. 151
itself. But those powers are not to be exercised when
their exercise may be in conflict with what had been
expressly provided in the Code or against the
intentions of the Legislature. This restriction, for
practical purposes, on the exercise of those powers is
not because those powers are controlled by the
 26

provisions of the Code but because it should be

presumed that the procedure specifically provided by
the Legislature for orders in certain circumstances is
dictated by the interests of justice.

25. In this context, it is useful to refer to the observations

of the Supreme Court in the case of The Commissioner of Sales

Tax, Uttar Pradesh, Lucknow vs- M/s.Parson Tools and

Plants, Kanpur reported in AIR 1975 SC 1039 wherein at para-

18 it is held as under:

We have said enough and we may say it again that

where the Legislature clearly declares its intent in the
scheme and language of a statute, it is the duty of the
Court to give full effect to the same without scanning
its wisdom or policy, and without engrafting, adding or
implying anything which is not congenial to or
consistent with such expressed intent of the law-giver .
. . . .

26. Again the Apex Court in the case of Cotton

Corporation of India Limited vs- United Industrial Bank

Limited and others, AIR 1983 SC 1272 dealing with the power
 27

of the Court to grant temporary injunction, inspite of prohibition

under Section 41(b) of the Specific Relief Act and after referring to

the judgments of the Apex Court in the case of Manohar Lal

Chopra and Padam Sen (supra), has held as under:

In view of the majority decision, it must be

conceded that the court can in appropriate cases grant
temporary injunction in exercise of its inherent power
in cases not covered by Order 39 C.P.C. But while
exercising this inherent power, the court should not
overlook the statutory provision which clearly indicates
that injunction to restrain initiation of proceeding
cannot be granted. Section 41 (b) is one such
provision. And it must be remembered that inherent
power of the court cannot be invoked to nullify or
stultify a statutory provision.

27. Therefore, what follows from the above is that,

though the provisions of the Code are not exhaustive, the Court

can grant an order of temporary injunction in its inherent

jurisdiction, even though the matter does not fall under Order

XXXIX of the Code. It is true that Order XXXIX Rules 1 and 2 do

 28

not provide specifically that a temporary injunction shall not be

issued in cases, not mentioned in those Rules. But, once the

Legislature prescribes the cases in which an order of temporary

injunction is to be granted and the cases in which such an

injunction cannot be granted, the Court should respect the

legislative intent, as reflected by the statutory provisions. The

legislative intent may be either express or may be clear by

necessary implication. As long as the intention of the Legislature

could be gathered from the provisions and it is clear, inherent

power should not be exercised, then to nullify or stultify such a

provision.

28. The instant case would fall U/o XXXIX Rule 1 of CPC

and therefore the court cannot grant temporary injunction by

exercising its inherent powers. If this were to be a case not

covered U/o XXXIX rule 1 and 2 CPC then the court could in

exercise of inherent jurisdiction, grant and order of temporary

injunction.
 29

CONCEPT OF SAME CAUSE OF ACTION

29. Realizing the above difficulties and to overcome to the

same, it was contended that the defendant can maintain an

application for injunction, if the relief sought is incidental to the

plaintiffs cause of action or arises out of it. In support of the

same judgment of this Court in the case of Suganda Bai vs-

Sulu Bai & Others (1975) 1 KLJ 96, is relied upon. This was a

case where reliance was placed on two English authorities to hold

that:

Now the principles, under which a defendant may

seek and obtain an order of temporary injunction
against the plaintiff, are stated in Collison v.
Warren(1), where Buckley, J., after referring to a
number of earlier decisions of the English Courts,
quoted Lopes, LJ., in (1824) 2 Ch.545:

The question is this - whether the defendant

can move for an injunction against the plaintiff without
filing a counter-claim or issuing a writ in a cross-
action. In my opinion, he can in some cases, but only
in cases where the defendants claim to relief arises
 30

out of the plaintiffs cause of action, or is incidental to

it.

30. At the outset, the provisions of Order XXXIX Rule 1

and 2 CPC are not interpreted in Suganda Bais case. Secondly,

Order XXXIX Rule 1(c) was not in the statute book as on the date

of that judgment and it came to be incorporated w.e.f. 01.02.1977

by Act No.104/1976. Thirdly, this Court while deciding Suganda

Bais case relied on the judgments of the English Court, which

were based on common law whereas, in the case on hand we are

called upon to interpret a statutory provision contained in the

Code of Civil Procedure, a codified law. Nowhere in Order XXXIX

Rule 1 and 2 of CPC are the words cause of action referred to.

Therefore, it would be contrary to the statutory provision

contained in the Code of Civil Procedure to hold that the

defendant can maintain an application for injunction on the same

cause of action, on which the plaintiff has come to the court.

31. However, on an earlier occasion when it was found

that the judgments on the point do not lay down the correct law,
 31

a reference was made to the Division Bench in the case of

Ramaiah vs- Gowdappa reported in ILR 1989 KAR 962 on

the following questions:

1. Whether the defendants can file an application

seeking temporary injunction against the plaintiffs in a
suit filed by the plaintiffs? And

2. Whether the decision of this Court in SUGANDA BAI

vs SULU BAI & OTHERS (1975(1) KLJ 96) places any
restriction in the matter of grant of temporary
injunction in favour of defendants in a suit filed by the
plaintiffs?

32. The Division Bench, relying on the judgment of the

Apex Court in MANOHARLAL CHOPRAs case (cited supra), held

that the defendant can maintain an application under Order

XXXIX Rule 1 and 2 for an injunction against the plaintiff by

making a distinction between a suit for partition and separate

possession and a suit for bare injunction and the judgment in

Suganda Bais case was held to be in conformity with the view

taken in MANOHARLAL CHOPRAs case. In both the judgments,

 32

the difference in the language employed in Rule 1 (a) and Rules

1(b) and (c) is not noticed. Therefore, we are of the view that,

when the statute prescribes a particular procedure set out in a

provision in which the word cause of action is conspicuously

missing, it is not possible to hold that a defendant can maintain

an application for injunction if it is based on the same cause of

action as that of the plaintiff or incidental thereto and further

that, such an application cannot be maintained if the cause of

action for the defendant arises subsequent to the cause of action

the plaintiff has pleaded. We do not find any support to such a

proposition of law as is laid down in the above two judgments and

therefore, we over rule the same.

33. The correct legal position as is clear from the

statutory provision is as under:

(i) Both the plaintiff and the defendant can

maintain an application U/o XXXIX Rule 1(a) of
the Code for the reliefs set out in the said
provision;
 33

(ii) Insofar as relief under Order XXXIX Rule 1 (b)

and (c) is concerned, such a relief is available
only to the plaintiff and the defendant cannot
maintain an application for the said reliefs in a
suit filed by the plaintiff, irrespective of the fact
that his right to such relief arises either from the
same cause of action or a cause of action that
arises subsequent to filing of the suit.

However it is open to the defendant to maintain

a separate suit against the plaintiff and seek
relief provided under Order 39 Rule 1(b) and (c)
of the Code.

(iii) In cases which do not fall under Order XXXIX

Rule 1 of the Code, the Court has the inherent
jurisdiction to grant the relief of injunction in its
discretion, if it is satisfied that such an order is
necessary to meet the ends of justice or to
prevent abuse of process of the court and
nothing in this Code shall limit or otherwise
affect such inherent power of the court.

Accordingly, we answer the question of law referred to for

our consideration in the negative.

 34

34. Office is directed to place these writ petitions before

the learned Single Judge for disposal in accordance with the

judgment rendered by us in these cases.

Sd/-
JUDGE

Sd/-
JUDGE

Sd/-
JUDGE

NVJ & KNM/-