Sunday, 18 September 2016

Whether defendant can apply for injunction against plaintiff under Order 39 of CPC?

It was also argued that the defendant cannot make an application for injunction against the plaintiff. It was held in Sivakami Achi v. Narayana Chettiar, AIR 1939 Mad 495 and B. F. Varghese v. Joseph Thomas, AIR 1957 Trav Co. 286 that a defendant can also apply for an injunction against the plaintiff under Order 39.
Rajasthan High Court
Rattu vs Mala And Anr. on 31 January, 1968
Equivalent citations: AIR 1968 Raj 212

Bench: J Narayan


1. This is a revision application by one Rattu, plaintiff, against an order of the Civil Judge, Jhunjnunu, directing him to be detained in civil jail for a period of one month and further directing attachment of the property to the extent of Rs. 500 under Order 39, Rule 2(3), C P. C. for disobedience of an order of injunction. This order was confirmed on appeal by the District Judge Jhunihunu.
2. Lachhman defendant No. 2 is the owner of some agricultural and non-agricultural properties. He executed a gift-deed in respect of all his properties in favour of Malaram defendant No. 1. The present suit was instituted by Rattu plaintiff for a declaration that the gift-deed in favour of Malaram is null and. void and he is the adopted son of Lachhman. During the pendency of this suit on the application of Malaram the trial court passed an order restraining Rattu from interfering with his possession over the properties in suit. This injunction was also confirmed by the learned District Judge on appeal. After the appeal of Rattu against the order of temporary injunction was dismissed he forcibly dispossessed Malaram from the agricultural land in suit. He was proceeded against by the learned Civil Judge.
3. The first contention an behalf of the applicant is that the civil court had no jurisdiction to entertain the suit or to pass an order of temporary injunction, at any rate in respect of the agricultural land.
4. It is not disputed that the suit in respect of non-agricultural property could only be instituted in the civil court. As there was one cause of action to the plaintiff both in respect of agricultural as well as non-agricultural properties he could not have brought two suits. One suit in respect of both these properties could only be instituted in the civil court A temporary injunction in such a suit can only be granted by the Civil Court in which suit is instituted. The provision contained in Section 242 of the Rajasthan Tenancy Act goes to show that the Legislature contemplated that a composite suit shall be instituted in the civil court which shall frame an issue on the plea of tenancy in respect of agricultural land and remit it for decision to the appropriate revenue court.
5. I accordingly hold that the civil court had jurisdiction to grant the temporary injunction.
6. Next it is contended that the order of injunction was not passed under Rule 2 of Order 39 and disobedience of it could not be punished under Rule 2(3) of that order. This contention also has no force. It is settled law that disobedience of an order of injunction is punishable under Rule 2 (3) of Order 39 whether injunction is granted under Rule 1 or Rule 2 of Order 39 or under Section 151, C. P. C.
7. It was also argued that the defendant cannot make an application for injunction against the plaintiff. It was held in Sivakami Achi v. Narayana Chettiar, AIR 1939 Mad 495 and B. F. Varghese v. Joseph Thomas, AIR 1957 Trav Co. 286 that a defendant can also apply for an injunction against the plaintiff under Order 39.
8. The applicant has delivered possession over the fields to Malaram defendant. The disobedience or breach of the order has thus come to an end. I accordingly direct that his property which has been attached shall be released.

 9. With the    above    modification the
revision  application     is  dismissed.    In  the
circumstances of the case, I leave the parties
to bear their own costs. 
 

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