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2016 DIGILAW 503 (MP)

Nandu s/o Bhagwan Das v. Jamuna Bai

2016-06-24

ANAND PATHAK

body2016
ORDER : Anand Pathak, J. 1. This appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellants/defendants against the judgment and decree dated 16-01-2006 passed by learned 8th Additional District Judge Gwalior in Civil Appeal No.37-A/2005 confirming the judgment and decree dated 22-12-2004 passed by learned 8th Civil Judge Class-II, Gwalior in Civil Suit No.42-A/2001. 2. The appeal has been admitted by this Court vide order dated 17-04-2013 on the substantial questions of law. Since then the appeal is pending consideration for final hearing. 3. The respondents/plaintiffs have filed a suit for declaration and injunction against the appellants/defendants in respect of the suit property as mentioned in the appeal memo. The respondents/plaintiffs have recently started some construction over the disputed site, therefore, the appellants/defendants had move an application (I.A.No.2399/2016) under Order 39, Rule 1 and 2 read with Section 151 of CPC seeking the injunctions against the respondents/plaintiffs. The respondents/plaintiffs filed reply to the said application and while contesting the claim of appellants/defendants raised the legal question regarding maintainability of the application preferred by the defendants. According to the counsel for the respondents /defendants, the 2 S.A.No.365/2006 appellants/defendants had no right to move an application for injunction under Order 39, Rule 1 and 2 of CPC because the injunction is always available to the plaintiffs and the defendants cannot seek any injunction. The plaintiffs also submitted that renovation work of the residential area over the disputed site has already been completed and annexed the photographs in this regard. 4. Now the moot question for consideration of this injunction application (I.A.No.2399/2016) is whether the defendants have any legal right available to move an application under Order 39, Rule 1 and 2 of CPC or not. 5. Learned counsel for the appellants/defendants submitted that the defendants can claim injunction as per the provisions of Order 39, Rule 1 and 2 of CPC because here in the present case the defendants are not seeking any injunction regarding dispossession but against the construction of house by the plaintiffs and therefore, he is entitled to seek injunction in respect of property if nature of the property is attempted to be changed by the plaintiffs through damage or alienation. The appellants/defendants relied upon the judgment rendered by the Division Bench of this Court in the matter of Churamani and another v. Ramadhar and others 1991 MPLJ 311 . 6. The appellants/defendants relied upon the judgment rendered by the Division Bench of this Court in the matter of Churamani and another v. Ramadhar and others 1991 MPLJ 311 . 6. On the other hand, learned counsel for the respondents/plaintiffs vehemently argued that the defendants have no right to seek injunction in the present case because the provisions of Order 39, Rule 1 and 2 of CPC do not mandate so. According to 3 S.A.No.365/2006 the respondents/plaintiffs, the said remedy is only available to the plaintiffs and defendants cannot invoke it. Similarly, the respondents/plaintiffs have further averred that the construction of house has already been completed by the plaintiffs till now. Therefore, no injunction can be granted. 7. Learned counsel for the respondents/plaintiffs relied upon the judgments rendered in the case of Chhitoo and others v. Sakharam and others, 1981 JLJ 487 , Sushila Singh (Smt.) v. Vijay Shanker Shukul, 1980 JLJ 496 and Ram Narayan Singh v. Rikhraj Singh, 1997 MPWN 34. 8. Heard learned counsel for the parties on the application under Order 39, Rule 1 and 2 of CPC (I.A.No.2399/2016) and with their assistance perused the record. 9. The moot question in controversy is scope of seeking injunction by the defendants under the provisions of Order 39, Rule 1 and 2 of CPC. Before adverting to the controversy it is imperative to discuss the legal provisions in this regard. The Order 39 of CPC deals in respect of temporary injunction and interlocutory orders. Order 39, Rule 1 and 2 of CPC reads as under: “1. Before adverting to the controversy it is imperative to discuss the legal provisions in this regard. The Order 39 of CPC deals in respect of temporary injunction and interlocutory orders. Order 39, Rule 1 and 2 of CPC reads as under: “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 a execution of a decree, or (b) that the defendant threatens, or 4 S.A.No.365/2006 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 be 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 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. 2. Injunction to restrain repetition or continuance of breach - (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, 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. (2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.” 10. (2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.” 10. From perusal of Rule 1 and 2 of CPC, it is clear that Rule 1 (a) provides remedy to “any party” in respect of any property in dispute in a suit if is in danger or being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of decree. 5 S.A.No.365/2006 Therefore, the meaning of Waste, Damage or Alienate gains importance in the present context. As per the Black's Law Dictionary, the definition of Waste, Damage and Alienate is as under: Alienate: to transfer or convey (property or a property right) to another. Damage: loss or injury to person or property. Waste: Permanent harm to real property committed by a tenant (for life or for years) to the prejudice of the heir, the reversioner, or the remainderman. In the law of mortgages., any of the following acts by the mortgagor may constitute. 11. As per Webster Comprehensive Dictionary to the English Language, the definition of Waste, Damage and Alienate is as under: Alienate: to make over, transfer, as property to the ownership of another. Damage: destruction or impairment to value; injury; harm. Damaged: to impair the usefulness or value of. Waste: make desolate , ruined, dismal, slummy. causing site as worthless or no practical value, use or worn out, discarded. Wasted: to cause to lose strength, vigor or bulk, make weak or feeble. 12. Therefore, if the property is in danger of being wasted, damaged or alienated then in that condition 6 S.A.No.365/2006 certainly, any party (or defendant in the present case) can move an application for injunction under Order 39, Rule 1 (a) of the CPC. 13. The Madras High Court in the matter of Sivakami Achi v. Narayana Chettiar, AIR 1939 Madras 495 has held that an application under Order 39, Rule 1 (a) of the CPC can be made on behalf of defendant. 13. The Madras High Court in the matter of Sivakami Achi v. Narayana Chettiar, AIR 1939 Madras 495 has held that an application under Order 39, Rule 1 (a) of the CPC can be made on behalf of defendant. Later on, the said judgment has been considered by the Division Bench of this Court in the matter; Churamani and another (supra) and held that the defendant has right to move application under Order 39, Rule 1 (a) of CPC if any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to a suit or wrongfully sold in execution of a decree. 14. Learned counsel for the respondents/defendants has relied upon the judgment of this Court rendered in Chhitoo and others (supra) also deals in respect of scope of Order 39, Rule 1 and 2 of CPC in respect of defendants and concluded that use of the expression 'any party' is certainly wide enough to cover the plaintiff as well as defendant. Similarly, the judgment rendered in the case of Sushila Singh (supra) deals in realm of possession which is the scope of Order 39, Rule 1 (b) and (c) of the CPC and not of Order 39, Rule 1 (a) of the CPC. Same analogy can be advanced in respect of judgment rendered in the case of Ram Narayan Singh (supra). 15. Here, the question is whether in the facts and circumstances of the case, defendants are seeking injunction in respect of possession or in respect of property being wasted, damaged or alienated. The 7 S.A.No.365/2006 contention of the defendants is that the plaintiffs are making construction over the suit property and therefore, in this way is causing damage to the suit property and would alter the nature of the property. Definition of word Waste (wasted) and Damage (damaged) do give substance to the submissions of the defendants because raising of construction over the suit property would not only alter the nature of the suit property but may cause damage to the suit property or render it as wasted. Definition as given in the Black's Law Dictionary as well as Websters Comprehensive Dictionary make it sufficiently clear that the loss in the nature of the property is imminent by the construction of the plaintiffs. 16. Definition as given in the Black's Law Dictionary as well as Websters Comprehensive Dictionary make it sufficiently clear that the loss in the nature of the property is imminent by the construction of the plaintiffs. 16. Even otherwise, there being no such expression in Section 94 of CPC which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 of CPC or by any Rules made under the Code, the Courts have inherent jurisdiction to issue temporary injunction in circumstances which are covered by the provision of XXXIX of CPC, if the Court is of the opinion that the interest of justice requires the issue of such temporary injunction. The inherent power has not been conferred upon the Court. It is a power inherent in the Court by virtue of its duties to do justice between the parties before it. {See: AIR 1962 SC 527 (Manoharlal Chopra v. Rai Bahadur Rao Raja Seth Hiralal)}. Here, in the present case, there is no need to resort to Section 94 or 151 of CPC because the Order 39, Rule 1(a) of CPC itself provides the remedy to the defendant to seek injunction as per the parameters prescribed. 8 S.A.No.365/2006 17. Therefore, it is concluded that the defendant can file an application under Order 39, Rule 1 (a) of CPC for injunction and the same is maintainable if the exigencies as provided under Order 39, Rule 1 (a) of CPC exists. Therefore, defendants are entitled to get injunction. 18. Looking to the verdict of Hon'ble Supreme Court in the matter of Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass as reported in (2004) 8 SCC 488 to prevent appellants to suffer irreparable loss in the hands of respondents in respect of property in question being alienated, damaged or wasted, injunction is granted in favour of defendants. In the present case, the defendants have sufficiently made out a case for grant of injunction. 19. The respondents/plaintiffs have demonstrated through photographs and pleadings that the construction is over by now. Thus, the injunction application preferred by the appellants/defendants is allowed to the extent that the respondents/plaintiffs are temporarily injuncted not to damage or waste the property further, nor the respondents/plaintiffs would alienate the property to the disadvantage of the appellants/defendants, during pendency of this appeal. 20. I.A. stands disposed off.