Order 39 Rule 1 CPC: Can A Defendant Seek Injunction In A Suit Filed By Plaintiff? SC Issues Notice

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 applications filed by the defendant to his specific performance suit was dismissed by the Karnataka High Court. As the defendant was not ready to execute the sale deeds, plaintiffs had filed the suits. In the said suits, the defendant made applications under Order 39 Rule 1(a) (b) and (c) read with Section 151 of C.P.C. seeking temporary injunction to restrain the plaintiffs from alienating the property till the disposal of the suits. The trial Court allowed the applications filed in both the suits and granted temporary injunction restraining the plaintiffs in both the suits.

Order 39, Rule 1 provides for cases in which temporary injunction may be granted.

It reads as follows:

Where in any suit it is proved by affidavit or otherwise -

(a) that any property in dispute in a suit is in dagger 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, 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 order) (

(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.

Views of Some High Courts

 In an early judgment, the Karnataka High Court in Suganda Bai vs Sulu Bai ILR 1974 KAR 1533, had held that it is only in cases where the defendants' claim to relief arises out of the plaintiffs cause of action or is incidental to it that he can ask for a temporary injunction against the plaintiff. The Calcutta High Court in Dr. Ashish Ranjan Dass v. Rajendra Nath Mullick AIR 1982 Cal 529, followed this view and held in that case, that the defendant's claim was incidental to the plaintiff's relief, and thus granted the temporary injunction sought for.

In Vincent  vs Aisumma AIR 1989 Ker 81, the Kerala High Court had held that Order 39, Rule 1 affords scope for passing orders of injunction, prohibitory or mandatory, on applications filed by defendants also. "R. 2 envisages only application filed by the plaintiffs against the defendants. But Rule 1 contains indications that an order of injunction can be passed either against the defendant or against the plaintiff. Out of the three Clauses in the Rule, the last two refer to orders of injunction passed against defendants, whereas the first Clause (a) does not confine to applications filed by the plaintiffs alone. The words "by any party to the suit" in the said Clause are sufficient enough to indicate that the legislature intended such orders to be passed even on applications filed by defendants. Support for the above reasoning can be drawn from some of the expressions employed in Rules 2A, 3, 3A and 4 of Order 39 of the Code. Rule 2A deals with consequences of disobedience of the injunction. "The person guilty of such disobedience" is liable to such consequences. It is not necessary that such person should be a defendant. It could as well be a plaintiff. Rule 3 says that before granting an injunction, the Court shall direct notice of the application to be given to "the opposite party". Same expression ("the opposite party") is used in Rule 3A also. If an order of injunction has to be discharged or varied or set aside by the Court, Rule 4 enjoins filing of an application for that purpose "by any party dissatisfied with such order". If the injunction order envisaged in Order 39 could be passed only against defendants, there is no need to use expressions such as those referred to above in the aforesaid Rules. Such expressions have been used to contain the eventuality in which even a defendant may have to seek for injunctions against plaintiffs. That apart, there is no prohibition in the Rules under Order 39 against a defendant making an application for injunction. Rules in Order 39 and Order 40 are intended to protect the subject matter of the suit and to safeguard the rights of parties during the pendency of the litigation. The principle behind enacting the Rules in Order 39 is to stop the mischief complained of and to keep the things in status quo during pendency of the litigation, if that course is necessary in the interest of justice in each case. It cannot be forgotten that the result of the suit is binding on the plaintiff and defendant equally. Defendant cannot be exposed to the mischief committed by plaintiffs merely because the party who approached the Court first is the plaintiff in a suit. These are probably the reasons for not incorporating any prohibition in the Rules under Order 39 against a defendant making an application for injunction against the plaintiffs. Hence there is nothing wrong in assuming that Order 39, Rule 1 affords scope for passing orders of injunction, prohibitory or mandatory, on applications filed by defendants also.", Justice KT Thomas had observed in the said judgment.

The Patna High Court in the case of Indrawati Devi v. Bulu Ghosh AIR 1990 Pat 1 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 O.XXXIX 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.", it was observed.

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