Without written statement/“Whether the defendant in a suit for declaration and injunction can maintain an application for injunction under Order 39 Rule 1(c) of the Civil Procedure Code, 1908?”




Without written statement

“Whether the defendant in a suit for declaration and injunction can maintain an application for injunction under Order 39 Rule 1(c) of the Civil Procedure Code, 1908?”

The Division Bench, relying on the judgment of the Apex Court in MANOHARLAL CHOPRA’s case (cited supra) , held that the defendant can maintain an application under Order XXXIX Rule 1 and 2 for an injunction against the plaintiff by making a distinction between a suit for partition and separate possession and a suit for bare injunction and the judgment in Suganda Bai’s case was held to be in conformity with the view taken in MANOHARLAL CHOPRA’s case. In both the judgments, the difference in the language employed in Rule 1 (a) and Rule 1 (b) and (c) is not noticed. Therefore, we are of the view that, when the statute prescribes a particular procedure set out in a provision in which the word “cause of action” is conspicuously missing, it is not possible to hold that a defendant can maintain an application for injunction if it is based on the same cause of action as that of the plaintiff or incidental thereto and further that, such an application cannot be maintained if the cause of action for the defendant arises subsequent to the cause of action the plaintiff has pleaded. We do not find any support to such a proposition of law as is laid down in the above two judgments and therefore, we over rule the same. The correct legal position as is clear from the statutory provision is as under:

  • Both the plaintiff and the defendant can maintain an application U/o XXXIX Rule 1 (a) of the Code for the reliefs set out in the said provision;
  • Insofar as relief under Order XXXIX Rule 1 (b) and (c) is concerned, such a relief is available only to the plaintiff and the defendant cannot maintain an application for the said reliefs in a suit filed by the plaintiff, irrespective of the fact that his right to such relief arises either from the same cause of action or a cause of action that arises subsequent to filing of the suit.

However it is open to the defendant to maintain a separate suit against the plaintiff and seek relief provided under Order 39 Rule 1(b) and (c) of the Code.

  • In cases which do not fall under Order XXXIX Rule 1 of the Code, the Court has inherent jurisdiction to grant the relief of injunction in its discretion, if it is satisfied that such an order is necessary to meet the ends of justice or to prevent abuse of process of the court and nothing in this code shall limit or otherwise affect such inherent power of the court.

Accordingly, we answer the question of law referred to for our consideration in the negative.

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