Saturday, 4 July 2020

Whether the defendant can claim temporary injunction even if he has not filed a counter claim?

Now the principles, under which a defendant may seek and obtain an order of temporary injunction against the plaintiff, are stated in Collison v. Warren (1901) 1 Ch 812 where Buckley, J., after referring to a number of earlier decisions of the English Courts, quoted Lopes, LJ, in (1824) 2 Ch 541 at p. 545:--

"The question is this -- whether the defendant can move for an injunction against the plaintiff without filing a counter-claim or issuing a writ in a cross-action. In my opinion, he can in some cases, but only in cases where the defendant's claim to relief arises out of the plaintiffs cause of action, or is incidental to it."
Buckley, J., also referred to the decision of Davey, L.J., in the same case wherein it is stated thus:--

"In my opinion, it must be relating to or arising out of the relief sought in the action which is before the Court, and that any other injunction cannot properly be granted in the action."
The principles stated in the above decision have been followed by this Court and 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.

IN THE HIGH COURT OF KARNATAKA

Civil Revn. Petn. No. 1092 of 1974

Decided On: 09.08.1974

Suganda Bai Vs.   Sulu Bai and Ors.

Hon'ble Judges/Coram:
G.K. Govinda Bhat, C.J.
Citation: AIR 1975 Karnataka 137

This caselaw is overruled by karnataka High court in the case mentioned below: https://www.lawweb.in/2020/07/when-defendant-is-not-entitled-to-file.html

1. This revision preferred by the plaintiff arises out of an application made by defendant 1 for temporary injunction restraining the plaintiff from interfering with her alleged possession of the suit properties.

2. The plaintiff brought a suit in the Court of the Munsiff at Aland for a permanent injunction restraining the defendants from interfering with her possession. The cause of action as stated in the plaint is that the defendants began to interfere with the plaintiffs possession in the year 1970. After the suit was filed, the plaintiff did not ask for any temporary injunction. In the year 1973, defendant 1 made an application under Order XXXIX, Rules 1 and 2, read with Section 151, Code of Civil Procedure, for grant of a temporary injunction restraining the plaintiff from interfering with the defendants' possession of the suit property. That application was allowed by the trial Court and the said order was confirmed by the appealed Court. It is against the said order of the Court below that this revision petition has been filed.

3. Now the principles, under which a defendant may seek and obtain an order of temporary injunction against the plaintiff, are stated in Collison v. Warren (1901) 1 Ch 812 where Buckley, J., after referring to a number of earlier decisions of the English Courts, quoted Lopes, LJ, in (1824) 2 Ch 541 at p. 545:--

"The question is this -- whether the defendant can move for an injunction against the plaintiff without filing a counter-claim or issuing a writ in a cross-action. In my opinion, he can in some cases, but only in cases where the defendant's claim to relief arises out of the plaintiffs cause of action, or is incidental to it."
Buckley, J., also referred to the decision of Davey, L.J., in the same case wherein it is stated thus:--

"In my opinion, it must be relating to or arising out of the relief sought in the action which is before the Court, and that any other injunction cannot properly be granted in the action."
The principles stated in the above decision have been followed by this Court and 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.

4. In the instant case, the cause of action for the plaintiff's suit, as stated earlier arose in the year 1970, whereas the cause of action for the defendants arose in the year 1973. The two causes of action are different. Therefore, the courts below were wholly in error in granting temporary injunction prayed for by defendant 1.

5. For the reasons stated above, I allow this revision petition, reverse the orders of the Courts below and dismiss defendant-1's application, with costs throughout.

6. Petition allowed.


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