Defendant’s Claim for Injunction in Suit filed by Plaintiff (A Guest Post by Harshit Sharma)

This is a guest post by the very bright young judge Harshit Sharma (https://www.linkedin.com/in/harshit-sharma-hs30/) on a very interesting topic of civil law.


The present article focuses on the regularly encountered situation in trial courts. It is often seen that in a suit by plaintiff where he claims injunction in the connected miscellaneous file through an application under Order 39 CPC, defendant many times through his reply to the plaintiff’s application not only denies the averments of the plaintiff’s injunction application but also claims injunction in his own favour. So the moot questions arises before us is that- 

“Whether defendant can claim injunction in his own favour in reply to the plaintiff’s claim for injunction? If yes, then under what circumstances and in which cases he can’t claim for it and whether an alternate remedy lie to deal with such situations.

Introduction

Before we move forward it is necessary to look at the relevant provisions in Code of Civil Procedure (CPC) that deals with Injunction.

Section 94 of CPC provides that in order to prevent the ends of justice from being defeated the Court may, if it is so prescribed:

(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.

Order 39 Rule 1 of the Code is quoted below for ready reference:

“(1) Where in any suit it is proved by affidavit or otherwise:

  • 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
  • that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,
  • 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 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.

Rule 2 of Order 39 deals with the cases wherein the breach of contract or injury of any kind is apprehended. Provisions of Rule l (a), l (b) and l (c) are intended to meet different situations and different purposes. Rule l (a) speaks about the injunctions when the property is in danger of wasting, damage or alienation. Whereas Rule l (b) speaks about threatening with removal or disposal of the property with a view to defraud the defendant’s creditors and Rule l (c) speaks about threatening with dispossession or any other injury in relation to the property. 

Further Section 151 of CPC provides that nothing in the CPC 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.

The Problem-Moving to the Issue at Hand

A question of general importance was raised in the case Nanasaheb vs Dattu and Others[i] as to “Whether a defendant in a suit for injunction filed by the plaintiff can be granted injunction restraining the plaintiff from obstructing his alleged possession and enjoyment of the property”?

Similarly in Shakunthalamma vs Kanthamma[ii]the question that arose for consideration was “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?”

Understanding the Law on the Point

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 under Section 94(c) of the Code only if a case satisfies the requirements of the Rules 1 and 2 of Order 39 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 39, Rules 1 and 2 of the Code are satisfied and only thereafter grant appropriate relief. So we have to see whether such types of injunction can be granted under Order 39 R 1 & 2 CPC.

A careful reading of the Order 39 Rule 1 discloses that the Court is empowered to grant three types of orders under three different and distinct situations. Clause (a) of Order 39, 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 (both plaintiff and defendant included), 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 under Order 39, Rule 1(a) CPC.

What Clause (b) of Order 39, 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 39, Rule 1 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.

The Legislature has consciously used the words “any party to the suit” in Rule 1(a) of Order 39 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 39 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.

Defendant Can’t be granted Injunction under clause (b) & (c) of Rule 1 of Order 39 CPC

Had it been the intention of the Legislature in framing such a rule that either of the parties could be granted a temporary injunction for the purposes mentioned in all of these clauses, there was no occasion to expressly use the term ‘defendant’ as the author of the mischief could be prevented, particularly when in Clause (a) of Rule 1 there is no such mention of ‘defendant’. Therefore, purposefully the ambit of Clause (a) of Rule 1 was kept wider than the ambit of Clauses (b) and (c) of Rule 1 and provisions of Rule 2. The intention appears to restrict the power of grant of injunction in the circumstances mentioned in later clauses in favour of the plaintiff only.

Why there is Noticeable Difference between clause (a) and clause (b), (c)

The difference between the circumstances under Clause (a) and other clauses of Rule 1 is distinctive and important. The purpose of any interim relief is always to maintain the status quo in respect of the subject matter and the suit, so as to enable the Court to pass a fruitful decree after the hearing is completed. Therefore, waste, damage or alienation of the property by any party will result into disturbance in the status quo of the property and, therefore, even when an injunction is granted in favour of the defendant, it is really to protect the present state of the property in dispute and, therefore, from this angle can be considered to be an injunction in favour of the plaintiff, if he is honestly interested in getting the decree of protection of the property as it is on the day of the filing of the suit.

Injunctions in respect of disposal or removal of the property and particularly the injunctions in respect of protection of the possession are totally on different footing. Plaintiff comes to the Court for protection of his possession and enjoyment of the property. If the apprehended mischief by the defendant is proved prima facie, injunction is granted in his favour. If final relief cannot be granted in favour of a party, normally no question would arise to grant an interim relief in favour of that party so far as possession and enjoyment of property is concerned. 

It is in this view, the Legislature must have made a distinction between the persons entitled for relief under these different provisions. If the Legislature omits to grant a power to the Court in respect of a party and grants power in respect of other party, then it will have to be presumed that the exercise of the power in respect of the first party is barred by implication.

No Casus Omissus

In Commissioner of Sales Tax, Uttar Pradesh, Lucknow vs M/S Parson Tools and Plants, Kanpur[iii], Supreme Court held that, if the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so, would be entrenching upon the preserves of the Legislature, the primary function of a Court of law being jus dicere and not jus dare.

Use of Inherent Powers to Grant Injunction

Now another question that arises is whether Court can issue an order of temporary injunction if the circumstances do not fall within the provisions of Order 39 of the Code?

Supreme Court in the case of Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal[iv], noticing the difference of opinion between the various High Courts on the question, held that there is no prohibition in Section 94 to issue a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code. Supreme Court observed, 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” in Section 94 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 be 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 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 Padam Sen vs State of Uttar Pradesh[v] it was observed that:

“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 Section 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 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.”

Thus, Supreme Court, in this case was of the opinion that the provisions of the Code of Civil Procedure are not exhaustive and the Court has an inherent power to grant an injunction in circumstances which are not covered by the provisions of Order 39 of the Code of Civil Procedure. It was of the opinion that inherent powers of the Court which are merely declaration by Section 151 are not controlled by any of the provisions of the Code as has been specifically stated in the section itself. But those powers are to be exercised only when such an exercise is not in conflict with what has been expressly provided by the Code.

In respect of the exercise of inherent powers Shah, J. further observed:

“Inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.”

Therefore, it is now settled that Court has power to grant injunction even in circumstances not covered by Order 39 and it is also well settled that inherent powers of the Code can be utilised for issuing temporary injunctions but it should not be either to nullify a statutory provision nor to by-pass what is expressly provided. It is true, as was reminded by the Supreme Court in Manohar Lal Chopra’s case (cited supra) 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. Therefore, the situations which are not dealt either expressly or impliedly by the provisions of the Code, the Court is not rendered powerless and inherent powers as declared under Section 151 of the Code can always be resorted to meet the situation and ends of justice. The question would be whether a situation is dealt by the provisions of the Code or not. If the situation is dealt by the provisions of the Code, then the orders will have to be passed keeping in mind the provisions of the Code and if the situation is not dealt by the Code then resort to Section 151 can always be had.

If for example the issue is with regard enjoyment of the well water which is covered by sub-clause (c) of Order 39 Rule 1. Since the circumstance of injury to the property in dispute in a suit or threatened dispossession is dealt by Order 39, recourse to Section 151 and exercise of the inherent powers will not be available and, therefore, the application of the defendant will have to be rejected. 

Patna High Court in the case of Smt. Indrawati Devi vs Bulu Ghosh[vi] held that a defendant may claim interlocutory mandatory injunction:

“In the exercise of its inherent powers, the Court can in exceptional circumstances not covered by the situations envisaged under Order 39 Rules 1 and 2 of the Code of Civil Procedure grant temporary injunction, which includes not only a prohibitory but also a mandatory injunction and in the exercise of its inherent powers, no distinction can be drawn on the ground that such an order is passed at the instance of the plaintiff or the defendant.”

Similar view has been taken by Kerala High Court in the case of B.F. Varghese vs Joseph Thomas[vii] that under inherent powers of the Court in exceptional circumstances, mandatory injunction on interlocutory application can be granted even in favour of the defendant.

Needless to say, that there is also a difference in respect of the remedies which can be resorted to. If the power is exercised under Order 39, then an appeal has been provided under Order 43. However, if Section 151 is resorted, then no such remedy is provided.

Situations where Injunction can be granted in favour of defendant

As we have already discussed earlier that 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 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, injunction 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.

In Dr. Ashis Ranjan Das vs Rajendra Nath Mullick[viii], Calcutta High Court took a view that the defendant can ask for an interlocutory injunction restraining the plaintiff from making any construction over the plot in dispute. Such an injunction would come within the purview of Clause (a) of Rule 1 since the construction, in cases, would be a damage to the property as is the subject matter of the suit.

Conclusion

So on the basis of above discussion the following conclusion flows on the issue framed:

  • Both the plaintiff and the defendant can maintain an application under Order 39, Rule 1(a) of the Code for the reliefs set out in the said provision;
  • Insofar as relief under Order 39, 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. 
  • In cases which do not fall under Order 39, 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. But it has to be kept in mind that it shouldn’t nullify or derogate any expressly stated provision.

Authored by Harshit Sharma, Civil Judge cum Judicial Magistrate/Doctoral Candidate PhD at NLUJ.


[i] AIR 1992 Bom 24, 1991 (3) BomCR 548, (1991) 93 BOMLR 775, 1991 (1) MhLj 689

[ii] Writ Petition Nos. 58906 of 2013 and 16412 of 2014 (GM-CPC)

[iii] 1975 AIR 1039

[iv] 1962 AIR 527

[v] 1961 AIR 218

[vi] AIR 1990 Pat 1

[vii] AIR 1957 Trav Co. 286

[viii] AIR 1982 Cal 529

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2

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  1. S R Agarwal

    Respected Sir,you’ve once again enriched many by a powerful Explainer on the very delicate subject.

    The post by HON.Harshit Sir,is an eye opener which disccuses,analyzes and opions on law,case studies, Judgements and empowers readers and legal profession with his meticulously written and convincing Explainer.

    As you rightly said-after reading the article ,I hope all will agree with me that Hon’ble Harshit Sir,is truly Bright and PARAMĀTMĀN has Blessed him with HIS “TEJAS”VIBHUTI (GITA,10,36).

    Kind Regards/SR

    Can a defendant in a suit seek injunction under Order XXXIX of the Code of Civil Procedure, the Supreme Court has issued notice in a special leave petition which raised this issue.In this case, the plaintiffs, who approached the Apex Court, contended that in view of Order XXXIX Rule 1(c) CPC, a defendant cannot.Their appeals against a Trial Court order which allowed the injunction…

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  2. S R Agarwal

    Respected Sir,the Explainer on one of the least understood subject of”Defendant’s Claim for Injunction in Suit filed by Plaintiff” has been very very well analysed,written with logics,taking ratio of Hon.Supreme court Judgements, reading and discussing with legislation and it’s intents is an Eye-opener Article by HON’BLE SHRI Harshit Sharma.

    The Explainer will serve as a guide for times to come for the entire legal Fraternity including Hon’ble Judges, Advocates and all stakeholders.

    SIR,you rightly say about HON’BLE SRI HARSHIT as being Very Bright. Hon’ble Harshit Sir has been Blessed by PARAMĀTMĀN HIS DIVINE ‘TEJAS’ VIBHUTI (GITA,10,36).

    KIND REGARDS/SR

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