Licensed to Adv.

Vishnu Sukumaran K 1988 ICO 1082 Page 1 of 4

1988 ICO 1082

1988 (1) KLJ 343

10-02-1988
High Court of Kerala

C.R.P. No. 1842 of 1987

Justice Kallupurackal Thomas Thomas

Vincent & Ors ( Represented by, K N Narayana Pillai (Adv.) )

Vs.

Aisumma ( Represented by, P K Balasubramanian (Adv.) )

Equivalent Citations : AIR 1989 Ker 81 :: 1988 (1) KLJ 343 :: 1988 (1) KLT 420

Headnotes :-

A. Code of Civil Procedure, 1908 - Order XXXIX, Rule 1 - Whether the rule envisages an application
by the defendant for injunction, prohibitory or mandatory or it can be passed only under the inherent
powers of the court. Held : Rule 2 envisages only application filed by the plaintiffs against the
defendants. But R.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
R.2A, 3, 3A and 4 of 0.39 of the Code. R.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. R.3 says that before granting an
injunction, the court shall direct notice of the application to be given to "the opposite party". Same
expression is used in R.3A also. If an order of injunction has to be discharged or varied or set aside by
the court, R.4 enjoins filing of an application for that purpose "by any party dissatisfied with such
order". If the injunction order envisaged in 0.39 could be passed only against defendants, there is no
need to use expressions such as these 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 0.39 against a defendant
making an application for injunction. Rules in 0.39 and 0.40 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 0.39 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 mischiefs 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 0.39 against a defendant making an application for
injunction against the plaintiffs. Hence there is nothing wrong in assuming that 0.39 R.1 affords scope
for passing orders of injunction, prohibitory or mandatory, on applications filed by defendants also.
(Para 5)

Generated on 2024-10-22 © 2024 Kerala Law Journal indiancases.com

 Licensed to Adv. Vishnu Sukumaran K 1988 ICO 1082 Page 2 of 4

ORDER

K.T. Thomas, J.

1. This revision is by the defendants whose application for an order of mandatory injunction was dismissed
by the trial court. Learned counsel for the respondent-plaintiff raised a preliminary objection that the
application for revision cannot be entertained in view of the hurdle contained in S.115 (2) of the Code of
Civil Procedure (for short'the Code'), since an appeal lies against the impugned order.

2. Facts are the following: In a suit filed by the plaintiff for perpetual injunction restraining the defendants
from entering upon the plaint schedule property, an application for a temporary injunction was also filed.
The temporary injunction was to restrain the defendants from trespassing upon the plaint schedule property
or from cutting open a pathway through the said property. The trial court granted an ex parte interim
injunction order. When the defendants entered appearance and filed abjections, the court vacated the ex parte
order and dismissed the application for temporary injunction. Neither the appellate court nor the revisional
court disturbed the order dismissing the application for injunction. Defendant's case that they were using a
portion of the plaint schedule property as a pathway appeared to the court to be prima facie true. But
defendants complained that the plaintiff taking advantage of the ex parte interim order had put up a fence in
such a way as to block the pathway claimed by them. An application for directing the plaintiff to remove the
fence so put up was filed in the trial court. The application was dismissed by the lower court. Hence this
Civil Revision Petition at the instance of the defendants.

3. Learned counsel who raised the preliminary objection contended that the impugned order falls within the
scope of 0.39 R.1 of the Code, although the defendants had quoted only S.151 in their application. It is not
disputed that if the order has been passed under 0.39 R.1 of the Code, the remedy of the defendants is to file
an appeal since an appeal is proved in 0.43 R.1 (r) of the Cede against such an order. I shall now proceed to
examine the question whether the order under attack bad been passed under 0.39 R.1 of the Code.

4. An order dismissing the application for temporary injunction filed by a plaintiff could only be passed
under 0.39 R.1 or R.2 of the Code. There is no dispute on that aspect. That orders of mandatory injunction
are envisaged in 0.39 is no more in doubt now since the weight of authorities is in favour of the view that
such injunctions are also contemplated in 0.39 of the Code. Earlier, there was some doubt on that point.
Beaman, J. expressed that doubt first as early as in Rasul v. Pirbhai (AIR 1914 Bombay 42). It was doubtful
for His Lordship whether the court has power at all to issue mandatory injunction on an interlocutory
application. Shah, J. who was also on the Bench however, did not share the doubt expressed by Beaman, J.
and the learned judge left the question to be decided in other appropriate cases. During the same period
another Division Bench of the Bombay High Court in Champsey Bhimji & Co. v. Jumna Flow Mills (AIR
1914 Bombay 195) had adopted the opposite view and held that mandatory injunctions can be granted on
interlocutory applications filed under 0.39 of the Code. The said view has been consistently followed in later
decisions by other High Courts. (Vide Kandaswami v. Subramania (AIR 1918 Madras 588), R.K. Biswas v.
The Union of India (AIR 1966 Patna 263), Maria v. Alvaro (AIR 1978 Goa 46) and Patram v.
Rameshwardayal (AIR 1979 NOC 182-M. P. High Court). But in none of those cases had the question been
considered whether a mandatory it junction could be granted on an application filed by a defendant under
0.39 of the Code. Learned counsel for the petitioners referred me to the decision in Varghese v. Joseph
Thomas (AIR 1957 Trav. Co. 286). The Travancore-Cochin High Court had in that decision, confirmed the
reasoning adopted by the trial court that "if inherent powers of the court can be exercised in exceptional
circumstances on behalf of the plaintiff there is no reason not to extent the seme jurisdiction in similar
circumstances on behalf of the defendant". It is contended on the strength of the said decision that any order
of injunction passed on the defendant's application could only be granted under the inherent powers of the

Generated on 2024-10-22 © 2024 Kerala Law Journal indiancases.com

 Licensed to Adv. Vishnu Sukumaran K 1988 ICO 1082 Page 3 of 4

court and not in exercise of powers under 0.39 of the Code. The contention calls for examination of the
relevant provisions mere closely.

5. 0.39 R.1 is quoted below:

"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
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 properly (or dispossession of the plaintiff, or otherwise
causing Injury to the plaintiff in relation to any property in dispute in the suits as the Court
thinks fit, until lie 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)".

Rule 2 envisages only application filed by the plaintiffs against the defendants. But R.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 R.2A, 3, 3A and 4 of 0.39 of the Code. R.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. R.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 R.3A also. If an order of injunction has to be discharged or
varied or set aside by the court, R.4 enjoins filing of an application for that purpose "by any party dissatisfied
with such order". If the injunction order envisaged in 0.39 could be passed only against defendants, there is
no need to use expressions such as these 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 0.39 against a defendant making an
application for injunction. Rules in 0.39 and 0.40 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 0.39 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
mischiefs 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 0.39 against a
defendant making an application for injunction against the plaintiffs. Hence there is nothing wrong in
assuming that 0.39 R.1 affords scope for passing orders of injunction, prohibitory or mandatory, on
applications filed by defendants also.

Therefore, I uphold the preliminary objection accepting the view that the impugned order falls within the
ambit of 0.39 R.1 of the Code. Any such order is appealable as per 0.43 R.1 (r) and hence no application for
revision is entertainable. It is open to the petitioners to file an appeal and move for condonation of delay en
the ground of pendency of this revision petition.

Generated on 2024-10-22 © 2024 Kerala Law Journal indiancases.com

 Licensed to Adv. Vishnu Sukumaran K 1988 ICO 1082 Page 4 of 4

The Civil Revision Petition is disposed of in the above terms.

Issue carbon copy on usual terms.

Order accordingly.

--- End ---

Generated on 2024-10-22 © 2024 Kerala Law Journal indiancases.com