Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Revision No. 1701 of 1976

Judges

R.S Narula, C.J

Acts

Code of Civil Procedure. Rules 1 and 2 of Order 39 of the Code of Civil Procedure
clause (a) of rule 1 of Order 39 of the Code
rule 1 or rule 2 of Order 39 of the Code.
Section 37(1) of the Specific Relief Act
Order 39 Rules 1 and 2 of the Code,
Order 39 Rule 1(a) of the Code
Order 39 Rule 1 of the Code
rule 1 of Order 39
rule 2 of Order 39.
Order 39 Rule 2

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Smart Summary

Structured Summary of the Opinion by R.S. Narula, C.J.

Factual and Procedural Background

A money decree was obtained by Bhim Singh (respondent) against Giani (respondent No. 2) in a suit by Bhim Singh for specific performance of an agreement of sale and, in the alternative, for refund of earnest money. In execution of that decree, the land now in dispute was sought to be attached and sold. Smt. Giano (the plaintiff-petitioner) objected to the attachment of the agricultural land; her objections were upheld.

Bhim Singh then filed a suit for a declaration that the land belonged to the judgment-debtor Giani and was liable to attachment and sale; that suit was decreed ex parte on August 29, 1974. The present plaintiff-petitioner filed the suit from which the current proceedings arose in August 1976, seeking a declaration that the earlier judgment and decree (dated August 29, 1974 in suit No. 698 and the referenced mutation) were null and void and that she remained the owner in possession of the suit land.

Along with that suit she applied for a temporary injunction to restrain defendant No. 1 from getting the land auctioned pending final disposal. By an order dated September 9, 1976, the Sub-ordinate Judge First Class, Sonepat, dismissed the application on at least three grounds. The plaintiff's appeal against that order was dismissed in limine on October 30, 1976 by the Senior Sub-ordinate Judge (with enhanced appellate powers) on the sole ground that no temporary injunction can be granted in a suit for a declaration simpliciter, relying on observations in Surja v. Gopi. The Senior Sub-ordinate Judge did not consider the correctness of the other grounds or address the injunction application on its merits.

The present petition (revision) raised before R.S. Narula, C.J., therefore, principally required determination whether the Senior Sub-ordinate Judge refused to exercise jurisdiction vested in him to grant a temporary injunction in a declaratory suit.

Legal Issues Presented

Whether the Senior Sub-ordinate Judge refused to exercise jurisdiction vested in him by law to grant a temporary injunction pending a declaratory suit (i.e., did he err in holding that no temporary injunction can be granted in a suit for declaration simpliciter).
Whether, as a matter of law, a temporary injunction can or cannot be granted in a suit for declaration simpliciter, particularly under Order 39 Rules 1 and 2 of the Code of Civil Procedure and Section 37(1) of the Specific Relief Act.

Arguments of the Parties

Plaintiff-Petitioner's (Appellant's) Arguments

The plaintiff-petitioner's counsel drew the Court's attention to the Lahore High Court judgment in Bantu v. Lehna (A.I.R. 1926 Lah. 523) as support for the proposition that a temporary injunction can be granted in a suit for declaration.
The plaintiff sought a temporary injunction to restrain the defendant from getting the land auctioned pending the suit and appealed the dismissal of that application.

Respondent's Arguments

Mr. R.P. Dahiya, learned counsel for the first respondent, relied on the Single Bench judgment in Surja v. Gopi (1970 Cur. L.J. 188) to support the proposition that no temporary injunction can be granted in a declaratory suit simpliciter; he reasserted that position before R.S. Narula, C.J.
After deposit of the decretal amount into court (as ordered for stay of confirmation of sale), Mr. Dahiya conceded that the revision petition became academic so long as the full decretal amount remained deposited and available to his client on final failure of the plaintiff-petitioner in her suit.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Surja v. Gopi (1970 Cur. L.J. 188)	Referenced for the proposition that an interim injunction may not be permissible in a declaratory suit simpliciter (as relied on by the Senior Sub-ordinate Judge).	The Court examined the Single Bench judgment and concluded that the judge in Surja had not in terms held that no temporary injunction can ever be granted in a declaratory suit; the judge there had relied on the Andhra Pradesh authority in support of a defendant's contention and had already decided the case on merits. Thus, Surja did not lay down a general bar on injunctions in declaratory suits and was not decisive for the present case.
Peddinti Gopalacharyulu v. Rudra Veerammd (A.I.R. 1955 A.P. 142)	Division Bench holding that, outside Order 39 Rules 1 and 2, courts have no jurisdiction to grant injunctions in exercise of inherent powers; this authority concerned the scope of Order 39 Rule 2.	The Court observed that the Andhra Pradesh decision dealt only with Rule 2 and was not relevant to the present case which invoked Rule 1. The Andhra Bench's reasoning could not be used to conclude that temporary injunctions under Rule 1 are never available in declaratory suits.
Bantu v. Lehna (A.I.R. 1926 Lah. 523)	Held that a temporary injunction can be granted in a suit for declaration (supporting the proposition that injunctions in declaratory suits are possible in appropriate circumstances).	The Court relied on this authority as demonstrating that the law does not permit an absolute rule either way; it supported the conclusion that whether injunctions are available in declaratory suits depends on whether the facts bring the case within Order 39 Rule 1 or Rule 2.

Court's Reasoning and Analysis

The Court framed the legal question as whether the Senior Sub-ordinate Judge had refused to exercise jurisdiction to grant a temporary injunction in a declaratory suit. The analysis proceeded in distinct legal steps:

Statutory and procedural framework: the Court noted Section 37(1) of the Specific Relief Act (temporary injunctions may be granted at any stage of a suit) and that the grant of temporary injunctions is regulated by the Code of Civil Procedure, specifically Order 39 Rules 1 and 2. Clause (a) of Rule 1 of Order 39 permits injunctions where it is proved that property in dispute is in danger of being sold in execution of a decree.
Factual application to the present case: although the original agreement for sale concerned a different property, the land now sought to be attached and sold is the property in dispute in the present suit. The plaintiff's sole case was that this property was in danger of being sold in execution of Bhim Singh's decree against her husband, so the situation squarely fell within the language of Order 39 Rule 1 clause (a).
Treatment of precedents urged by respondents: the Court analyzed Surja v. Gopi and the Andhra Pradesh Division Bench decision (Peddinti Gopalacharyulu). It concluded Surja did not hold in express terms that no injunction can ever be granted in a declaratory suit and that the Andhra judgment addressed Rule 2 (and the scope of inherent powers) rather than Rule 1, so it was not relevant to the present case under Rule 1.
Principle on availability of injunctions in declaratory suits: relying also on Bantu v. Lehna, the Court held it is not possible to lay down an absolute rule that injunctions are always or never available in declaratory suits. Instead, whether a temporary injunction is permissible depends on whether the facts fit within the scope of Order 39 Rule 1 or Rule 2.
Outcome on jurisdictional question: on the facts before it, the Court found that a temporary injunction can be issued under Order 39 Rule 1(a) if the plaintiff is able to make out a case on the merits for such an injunction. Accordingly, the Senior Sub-ordinate Judge's dismissal in limine on the single ground that injunctions can never be granted in declaratory suits was incorrect because it effectively refused to exercise jurisdiction to consider whether Rule 1 applied on the facts and merits.
Interim procedural facts: at the time the petition was admitted, the Chief Justice had stayed confirmation of sale on condition that the full decretal amount be deposited in the trial Court within one month. The parties agreed that the requisite deposit was made; the respondent conceded the revision was academic so long as the amount remained deposited and available on final failure of the plaintiff-petitioner.
Directions given: the petition was allowed, the Senior Sub-ordinate Judge's order dated October 30, 1976 was set aside, and the higher court was directed to hear and dispose of the plaintiff-petitioner's appeal against the trial Court's order in accordance with law and in light of the reasoning in the opinion. The deposited amount was to remain in the trial Court and be placed in fixed deposit for one year on best available terms; the trial Court was directed to expedite disposal. The Court declined to give specific directions to the executing Court about confirming sale or disbursing the amount, noting those matters could be addressed in appropriate applications in the executing Court or in the trial proceedings.

Holding and Implications

Holding: THE PETITION IS ALLOWED. The judgment and order of the Senior Sub-ordinate Judge, Sonepat dated October 30, 1976 are set aside. The Senior Sub-ordinate Judge (or the Court now vested with the enhanced appellate powers) is directed to hear and dispose of the plaintiff-petitioner's appeal against the trial Court's order dated September 9/30, 1976 in accordance with law and in the light of the reasoning given.

Implications and direct consequences:

The Court held that there is no absolute legal rule barring temporary injunctions in declaratory suits; availability depends on whether the facts fall within Order 39 Rule 1 or Rule 2. On the facts of this case, the plaintiff's claim fell within the scope of Order 39 Rule 1(a), and therefore a temporary injunction can be issued if the plaintiff makes out a prima facie case on the merits.
The amount deposited by the plaintiff-petitioner (the full decretal amount) shall remain in deposit in the trial Court and is to be placed in fixed deposit for one year on the best available terms; it is to be paid to the party who finally succeeds in the suit, together with accrued interest.
The trial Court was directed to expedite disposal of the suit. The attachment of the property may continue. The decree-holder may, if advised, attach the amount deposited subject to the result of the suit; the Court declined to make further orders in this revision regarding confirmation of sale or disbursement of the deposit.
No new absolute precedent was laid down to categorically permit or prohibit injunctions in all declaratory suits; the ruling emphasizes a fact-dependent application of Order 39 Rules 1 and 2 and confirms that Rule 1(a) may permit injunctions where property in dispute is in danger of sale in execution.
Each party was directed to bear its own costs.

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Smt. Giano v. Bhim Singh And Another

R.S Narula, C.J:— A money decree was passed in favour of Bhim Singh respondent against Giani respondent in a suit filed by Bhim Singh respondent against Giani for specific performance of the agreement to sell certain property and in the alternative for the refund of the earnest money, etc. In execution of that decree the land now in dispute was sought to be attached and sold. Smt. Giano plaintiff-petitioner objected to the attachment of the agricultural land. Her objections were upheld. Bhim Singh respondent then filed a suit for declaration to the effect that the land in dispute belonged to the judgment-debtor Giani (who is the husband of the plaintiff-petitioner) and was liable to attachment and sale in execution of his decree. That suit was decreed ex-parte on August 29, 1974. There upon the present plaintiff-petitioner filed the suit form which the present proceedings have arisen in August, 1976. In this suit she has prayed for a declaration to the effect that the judgment and decree, dated August 29, 1974 in suit No. 698, dated August 28, 1974, and the mutation mentioned in the plaint are null and void and are not binding on the plaintiff, and the plaintiff is still the owner in possession of the suit land mentioned in the plaint. Along with the suit the plaintiff filed an application for a temporary injunction to restrain defendant No. 1 from getting the land auctioned till the final disposal of the suit. By his order, dated September 9, 1976, the Sub-ordinate Judge First Class, Sonepat, dismissed the plaintiff's application on at least three different grounds. The plaintiff's appeal against the order of the trial Court has been dismissed in limine by the Court of Shri Raj Kumar Gupta, Senior Sub-ordinate to Judge, Sonepat (with enhanced appellate powers) on October 30, 1976. The only ground on which the appeal has been dismissed is that no temporary injunction can be granted in a suit for a declaration Simpliciter. Reliance has been placed for that proposition on certain observations in the judgment of Gurdev Singh, J. in Surja v. Gopi . 1970 Cur. L.J 188.. The learned Senior Sub-ordinate Judge has not gone into the correctness on validity of all other grounds urged by the plaintiff before the trial Court. Nor has he dealt with the application for temporary injunction on merits.

2. The only question that, therefore, calls for decision in the present case is whether the learned Senior Sub-ordinate Judge has or has not refused to exercise jurisdiction vested in him by law to grant a temporary injunction pending a declaratory suit. To other words the question is whether temporary injunction can or cannot be granted in a suit for declaration simpliciter. Section 37(1) of the Specific Relief Act states that temporary injunctions are such as are to continue until a specified time, or until the further order of the Court, and they may be granted at any stage of a suit. The section further provides that the grant of temporary injunction is regulated by the Code of Civil Procedure. Rules 1 and 2 of Order 39 of the Code of Civil Procedure enumerate the circumstances in which a temporary injunction may be granted. If the relevant part of the provision is extracted from clause (a) of rule 1 of Order 39 of the Code it would read as below:—

“Where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being… … … … 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… … … … … … … … … … alienation, sale or disposition of the property… … … … … … 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.”

Though the property to which the agreement for sale related was indeed a different property and is no more the property in dispute, the property which is the subject-matter of the present suit in the land which is sought to be attached and sold by Bhim Singh respondent. Nobody can deny that is the property in dispute in the present suit. The sole case of the plaintiff is that the said property is in danger of being sold in execution of Bhim Singh's decree against the plaintiff-petitioner's husband who is respondent No. 2 before me. So far as the question of jurisdiction of the Court to grant a temporary injunction under Order 39 Rule 1 of the Code is concerned, the plaintiff's case appears to me to fall squarely within the above-quoted extracted portion of Order 39 Rule 1 of the Code. It is an entirely different matter whether the plaintiff has or has not a prima facie case or whether it is otherwise on merits a fit case for the grant of injunction or not. Those are matters with which I am not concerned as the lower appellate Court has not at all dwelt upon them. Mr. R.P Dahiya, learned counsel for the first respondent, has again referred me to the Single Bench judgment of this Court in the case of Surja (supra). The learned Judge has not in fact held in so many words that no temporary injunction can in any circumstances be issued in a declaratory suit. After taking notice of the fact that the suit out of which the matter had arisen before the learned Judge was for a declaration simpliciter reference was made to the Division Bench judgment of the Andhra Pradesh High Court in Peddinti Gopalacharyulu v. Rudra Veerammd . A.I.R 1955 A.P 142., and it was then stated that “this authority does support Mr. Mittal's contention that the learned Sub-ordinate Judge had acted without jurisdiction in granting the interim injunction.” This does not, in my opinion, amount to the learned judge having held that no injunction can be granted. The learned judge had already given his final decision in the end of paragraph 5 of the judgment that the plaintiff-respondent in that case was not entitled to the an-interim injunction. It was only an additional argument of the defendant based on the judgment of the Andhra Pradesh High Court which was noticed in connection with which it was observed that the said judgment did lend support to the contention of the defendant's counsel. In the above circumstances the judgment of Gurdev Singh, J. neither went into he merits of the contention and came to any decision on it, nor was it necessary for the learned Judge to do so in the view he had already taken on the merits of that particular case.

3. I have seen the judgment of the Division Bench in the Andhra Pradesh case. Their Lordships held that outside the scope of Order 39 Rules 1 and 2 of the Code, the Courts have no jurisdiction to grant any injunction in exercise of the Court's inherent powers. In a suit by the archaka of a temple for a declaration that he has a right to remain in possession of the suit lands as long as he performs archaka-thvam service and that he cannot during that time be evicted from those lands was considered to be not a suit for restraining the defendants from committing any injury of any kind, and, therefore, it was held that no injunction would be granted to the plaintiff to restrain the defendants from taking proceedings to recover possession of the lands in dispute. The question of a suit being or not being one for restraining the defendants from committing any injury of any kind arises only in an application under rule 2 of Order 39. No such question arises in cases covered by rule 1 of Order 39. The Andhra Pradesh judgment was concerned only with Order 39 Rule 2 and is not relevant for our purposes. The party claiming the injunction had made a statement before the High Court (as noticed in the judgment) that he could not bring his case under rule 1 of Order 39, but merely argued that the case came under rule 2. The judgment, therefore, dealt with the scope of rule 2 alone. Nothing stated in the judgment of the Division Bench of the Andhra Pradesh High Court is capable of leading to the conclusion that a temporary injunction cannot be granted under rule 1 of Order 39 in any declaratory suit of any kind.

4. On the other hand the learned counsel for the plaintiff-petitioner has invited my attention to the judgment of the Lahore High Court in Bantu v. Lehna . A.I.R 1926 Lah. 523., wherein it was clearly held that a temporary injunction can be granted in a suit for declaration. In my opinion it is not possible to lay down as a matter of law either that an injunction can always be granted in suit for declaration or that no injunction can ever be granted in such a suit. On the facts of each case it will have to be decided whether the application for injunction does or does not fall within the four corners of either rule 1 or rule 2 of Order 39 of the Code. The question of exercise of inherent jurisdiction of the Court is a separate matter. On the facts of this case I hold that a temporary injunction can be issued under Order 39 Rule 1(a) of the Code if the plaintiff is able to make out a case on merits for the issue of such an injunction.

5. At the time of admitting this petition I had granted stay of the confirmation of sale of the attached property in dispute on the condition that the full decretal amount (the amount for which Bhim Singh has got a decree against the petitioner's husband) is deposited by the petitioner in the trial Court within one month from that day. It is the common case of the counsel for the parties that the requisite deposit has been made. Mr. Dahiya rightly concedes that so far as his clients interests are concerned, this revision petition has become academic so long as the full amount to which his client is entitled remains in deposit in the Court and is available to his client on the final failure of the plaintiff-petitioner in her suit.

6. In the circumstances detailed above I allow this petition, set aside the judgment and order of the Court of the Senior Sub-ordinate Judge, Sonepat, dated October 30, 1976, and direct the said Court (or if the enhanced appellate powers are no more vested in the Senior Sub-ordinate Jude, the Court of the Additional District Judge, Sonepat) to hear and dispose of the appeal of the plaintiff-petitioner against the judgment and order of the Court of Shri R.S Bhatia, dated September, 30, 1976, in accordance with law in the light of what is stated above. The amount deposited by the plaintiff-petitioner shall remain in deposit in the trial Court to be paid out to the party who finally succeeds in the present suit filed by the plaintiff-petitioner. Mr. Dahiya submits that the amount should be paid out to his client. It is impossible to pass any such order in these proceedings. In the interest of both sides I direct that the amount may be put by the trial Court in fixed deposit for one year in any scheduled nationalised bank in Sonepat on the best available terms so that whoever gets the money should obtain it with interest accrued due thereon till that date. The trial Court is directed to ex-pedite the disposal of the suit. Mr. I.C Jain prays that a direction may be issued to the executing Court not to confirm the sale till the final disposal of the petitioner's appeal before she Senior Sub-ordinate Judge, Sonepat. His client can make an application to the executing Court for setting aside the sale. The attachment can continue. The decree-holder can attach the amount deposited by the petitioner subject to the result of her suit, if so advised. No direction can be given by this Court on any of these matters in these proceedings.

7. The parties are left to bear their own costs.

Order accordingly.

Smt. Giano v. Bhim Singh And Another

Structured Summary of the Opinion by R.S. Narula, C.J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff-Petitioner's (Appellant's) Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Smt. Giano v. Bhim Singh And Another

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