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Constitution of India, Article 227 - Writ Petition under Article 227 challenging the orders passed by Civil Courts refusing to grant interim injunction under Order XXXIX, Rules 1 and 2 of the CPC could very well be maintainable – CPC (V of 1908), O. 39 R. 1,2.2019 SCeJ 37

Civil Procedure Code, 1908, Order XXXIX - Principle of moulding of relief could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage -  The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage - There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage - As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. (2018)2 SCeJ 1374 SUPREME COURT E@JOURNAL


Injunction - Interim mandatory injunction  - An interim mandatory injunction is not a remedy that is easily granted - It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction  - Civil Procedure Code, 1908, Order XXXIX.  (2018)2 SCeJ 1374



Injunction - Principle of moulding of reliefs  - Interim mandatory injunction  -  Invocation of principle of moulding of reliefs so also the exercise of power to grant mandatory order at an interlocutory stage, is manifestly wrong - To put it differently, while analysing the merits of the contentions the High Court was swayed away by the consent agreement between the respondents 1 and 2, inter partes to which the appellant was not a party - Thus, he could not be bound by the arrangement agreed upon between the respondents inter se - The appellant would be bound only by the agreement entered into by the appellant with respondent No.2 dated 10th March, 2003 and at best the tripartite agreement dated 11th September, 2009 - The respondent No.2 having failed to discharge its obligation under the stated agreement dated 10th March, 2003, with the appellant cannot be permitted to take advantage of its own wrong in reference to the arrangement agreed upon by it with respondent No.1/plaintiff and including to defeat the claim of the appellant in the arbitration proceedings initiated by the  appellant against the respondent No. 2 –  Mandatory interlocutory injunction passed by the high court directing the appellant to hand over 8 (eight) flats along with 16 (sixteen) car parking spaces under the Settlement Agreement between respondent Nos.1 and 2 inter partes, set aside -  The settlement agreement between the respondent 1 and 2 being inter partes could not be thrust upon the appellant  who had executed a separate agreement with respondent No.2  -  In the factual scenario in which mandatory order has been passed against the appellant, in our opinion, is in excess of jurisdiction - Such a drastic order at an interlocutory stage ought to be eschewed -  It cannot be countenanced - Civil Procedure Code, 1908, Order XXXIX.


Held, the appellant could be bound only by the agreement dated 10 March, 2003 in his favour and executed by him with the respondent No. 2  - Admittedly, the said agreement is the subject matter of arbitration proceedings, inter alia because respondent No.2 had failed to discharge its obligation thereunder - The appellant has already parted with the possession of flats to respondent No.2 in furtherance of agreement dated 10th March, 2003 and respondent No.1/plaintiff could be accommodated only against those flats -  Asking the appellant to hand over additional 8 flats and 16 parking spaces by way of mandatory order, would be to superimpose the liability of respondent No.2 on the appellant for discharging its obligation qua respondent No.1/plaintiff in relation to the agreement entered between them and including the subsequent Settlement Agreement dated and Consent Terms between the respondent No. 1 and 2 to which the appellant is not a party. (2018)2 SCeJ 1374 / SUPREME COURT E@JOURNAL

  1. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Admitted fact that the total area of the road is 100 feet on which 28 feet in width is a metalled road and remaining area is berm area - The revision petitioners cannot raise the construction on the berm area so that the owner of the land adjoining to the road could not utilize its property properly - Further this construction of the shops etc. will create obstruction in the area of the railway, the access of the general public to the railway station, though as per site plan, space has been left for going to the railway station, but in no way, the Nagar Parishad has right to make construction on the berm area of the road to deprive the lawful owners of enjoying their properties - Further more, the relief under Order 39 Rules 1 and 2 Civil Procedure Code  is discretionary relief.      (177) P.L.R.
  2. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Court required to state reasons under Order 39 Rule 3 CPC - If the Court is merely ordering notice, no reason need to be given, but if the Court grants an ex parte injunction, even if it was an order of status quo by virtue of the proviso to Rule 3, the Court shall record the reasons for its opinion that the object of grant of injunction would be defeated, if injunction is not granted - Status quo quo orders are bound to create a confusion to parties, unless the Court brings out in the same order as to its finding regarding the possession in the hands of one or the other party - If ever it happened that the Court is unable to find a sure case of possession in the hands of the person, who seeks for injunction, it should be only taken that in such an eventuality, the prima facie case is not established and shall not be favoured with interim relief. (173) P.L.R. 4
  3. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Criminal Procedure Code, 1974 (II of 1974) S. 145 - Ad interim injunction granted by the civil court after hearing both the parties would in my view supersede the orders passed by Sub Divisional Magistrate under S.145 Cr.P.C - If the complaint is that the pendency of proceedings under S.145 Cr.P.C. and the appointment of Receiver was not brought to the notice of the civil court at the time of passing the ad interim injunction order, the defendants can take no advantage of that since they were present and contesting the case before the trial Court and were free to bring such fact to the notice of the court or whatever material they thought was in their favour disentitling the respondent to ad interim relief. (176) P.L.R.
  4. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Defendant intend to construct ramp in the street, which would naturally obstruct the free ingress to the house of the plaintiff - Otherwise also, the defendants have no legal right to construct ramp in a public street. (175) P.L.R.
  5. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Electricity connection in the name of the petitioner, who is an Ex-serviceman and it was allotted to him under a special category whereby after relaxing the rules, electricity connections were provided for tubewell - If at all something happens, the petitioner will be responsible for all intents and purposes including theft of  energy - A person in whose name the connection exists, he has every right to get it transferred in the name of any person under the rules of the Electricity  Board. (173) P.L.R. 8
  6. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - If trial court is yet to pass a final order on the application under Order 39, Rule 1 & 2, CPC then it appears harsh not to allow the petitioner to file reply to the stay application so that the stay matter is heard and argued on merits - The learned trial court could have put the petitioner to costs under Section 35-A, CPC, if the party was found prevaricating in its defence of the application - However, it cannot be said that while the plaintiffs have obtained a status-quo order they should be allowed to continue to enjoy it even they never would press the stay application on merits. (176) P.L.R.
  7. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Infringement of copyright - Before such a prima facie conclusion could be arrived at, there would have to be a comparison of the original book and the offending book - The same principle would apply to software also - While there may be differences in the front end, there may be identity or similarity in the coding of the software - But, this has to be shown and demonstrated by the plaintiff claiming infringement.  (178) P.L.R. (Del.)
  8. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Injunction - Order restraining respondent to raise further construction was set aside - Parties are in possession of specific portion of the suit property, although, the partition by metes and bounds has not been effected, nor reflected in revenue records - Moreover, the petitioner has raised the construction on some portion of the suit land; the petitioner cannot approbate and reprobate, once he has himself constructed the shops on some part of land - The fact remains that the parties to some extent are in possession of exclusive portion of suit land - It is however made clear that in partition proceedings, the parties will not be allowed to raise objection that the construction has been raised on some portion and it should be excluded from the partition.  (174) P.L.R.
  9. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Interim Injunction - As per the revenue record, the property in question is a Johar and Gram Panchayat appears to have over-stepped its power and has acted beyond its jurisdiction and is trying to change the nature of Johar by building a Dharamshala (chaupal) for a particular community and as such is wasting johar property - In these times of falling water levels and scarcity of water, the Government and the Gram Panchayat are duty bound to ensure that water bodies are protected, cleaned and if deficient in water, recharged. (182) P.L.R.
  10. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Interim injunction granted - Stand of the respondents is that in fact, the land is shamlat - There are 786 co-sharers - They are not interfering in the possession of the petitioner - Court is not to wait till such time the injunction is violated and the party in whose favour the order has been passed is pushed to the wall only letting him to file application under Order 39 Rule 2A CPC seeking punishment for violation of the injunction order - Sanctity of the orders of the court has to be maintained - Application filed by the petitioners seeking police help to protect their possession on the suit property is allowed.  (179) P.L.R.
  11. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Interim order passed ex-parte - Petition filed after 1 year three months challenging the order - Neither an application for condonation of delay nor any averments available on record explaining  reasons - Petitioner still has to approach the lower appellate Court and make an appropriate application in the appeal and pray that the appeal itself may be heard at an early date - Constitution of India, Article 227. (176) P.L.R.
  12. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - It is not believable that the plaintiff-mortgagee would only have one photocopy of the alleged mortgage deed and he does not have any other photocopy or any other proof whatsoever of the mortgaged deed - Do not find that the Trial court has committed any error in dismissing the application of the appellant-plaintiff under Order 39 Rules 1 and 2 of CPC - Plaintiff has no prima facie case - Merely filing of an injunction suit does not entitle a plaintiff to interim injunction because no doubt every disputed question of fact requires framing of issues but it is only a bonafide disputed question which entitles grant of interim injunction.
  13. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Order of temporary injunction passed - Plaintiff running a Filling Station as sole proprietor - Entered into partnership - Indian Oil Corporation did not allow the plaintiff to run the Filling Station in partnership - Consequently, the defendant cannot be allowed to run the Filling Station with plaintiff as partner - Partnership deed is also unregistered - Order upheld. (173) P.L.R. 8
  14. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Petitioners are merely encroachers on the land without having any right, title or interest therein - Merely by tying their cattle-heads or making hutments, the petitioners would not get any right, title or interest in the land which apparently belongs to Municipal Committee - Municipal Committee already passed a resolution in favour of the government of Haryana granting the land for construction of a park - Application dismissed - Order Upheld - Demolition would be conducted by following due process of law. (178) P.L.R.
  15. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Power of attorney would show that the general power of attorney was granted in which the powers were given to the attorney for encashing cheques, for mortgaging property without possession, to give it on lease, transfer, to make any kind of agreement with the party to give property on rent and to give receipt of the same - No person would block his 6 crores rupees by just accepting Rs.4 lacs as earnest money - Had substantial amount been paid out of the total sale consideration amount, then it could be considered that the right of the purchaser would be affected in case the property is disposed of by the owner or any charge is created thereupon - Application under Order 39 Rule 1, 2 dismissed - Order upheld. (180) P.L.R.
  16. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Property such as trees grown on land could be shown in possession only by evidence relating to title or the manner of enjoyment of the trees themselves.  (178) P.L.R.
  17. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - State Bank of India were restrained from releasing the letter of credit - Plaintiffs tracked the movement of the container in which defendant No.3 exporter alleged to have sent the goods for delivery to the plaintiff, he was shocked to know that the goods were in fact sent to Los Angeles (USA) and Manila (Philippines) and that were accordingly delivered - They acted in ordinary course of business and released the payment - The bill of lading was transferred by them to State Bank of India and as per plaint itself, the State Bank of India sent the same to the plaintiffs, which accepted the same in routine - Meaning thereby that the bill of lading was also accepted by the plaintiffs - The letter of credit issued by the State Bank of India in favour of defendant No.6 petitioner is irrevocable - Therefore, no injunction can be issued for restraining the State Bank of India defendant Nos.1 and 2 from releasing the payment against said irrevocable letter of credit - The balance of convenience is in favour of defendant Nos.1 and 2 and 6 negotiating bank - The plaintiffs have the equally efficacious remedy of suing the supplier for damages for non-supply of goods.  (182) P.L.R.
  18. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 1, 2 - Was admitted that tubewell is being used by all the co-sharers for irrigation of the entire joint land and if defendants are restrained from using the tubewell their portion of the land cannot be irrigated, which would result in immense loss - Contention of the petitioners to the effect that they are in possession of the entire property is not borne out from the record - Furthermore, in any case, the petitioners have impleaded defendant Nos.2 to 4 as a party being a co-sharer and prima facie for enjoying the property as co-sharer, they are to cultivate the land by using the tubewell which although is in name of the mother of the petitioners but it is also admitted fact that there is no other tubewell in the entire chunk of land - Thus it can be safely presumed that the defendants also were using the said tubewell for irrigation of their piece of land. (176) P.L.R.
  19. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 12 - Suit filed under representative capacity - Appellate Court granted the injunction in favour of the plaintiffs by restraining the defendants from interfering into the peaceful possession of land and their houses or baras out of the land of Khasra No.95/2 which has been described as Gair Mumkin Abadi and in possession of the village - No evidence that they were in possession of the trees standing on the land and the ownership of the trees vested in them - In the absence of the evidence, no injunction can be granted - Order upheld.  (178) P.L.R.
  20. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 2-A, Order 1 Rule 10(2) - There is no denying fact that on sufficient proof being produced by the initiator of proceedings under Order XXXIX Rule 2-A CPC, violators of the stated orders even if they are not parties in the suit, could very well be impleaded to answer claim of the suitor therein - In short, disobedience by a person who is neither a party nor named in the order would operate against violation of the order if the Court is satisfied with material on record that the person concerned had knowledge of the order of injunction. (176) P.L.R.
  21. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 2-A - Court Fee - A fixed Court fee is to be fixed on the application under Order 39 Rule 2-A CPC - Merely, the applicant has assessed the loss caused by the respondents by violating ad interim injunction and has asked for damages along with other remedies to get complied with ad interim injunction order under Order 39 Rule 2-A CPC, in no way, can be treated as a suit for recovery of damages - Therefore, no Court fee can be ordered on this application on the basis of the damages written in that application - It is for the Court to award damages or to attach the property or to arrest the respondents etc. to implement the ad interim injunction order as per law.  (178) P.L.R.
  22. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 2-A - During the pendency of suit, interim order dated 04.10.2015 was passed by the trial Court restraining the parties from raising any sort of construction - Violation of - Admittedly, the civil suit was dismissed as withdrawn - Once a suit is dismissed or decreed, interim order, if any, merges into the final order and the interim order stands nullified automatically - The provisions of Rule 2-A CPC are meant for enforcing an ad interim injunction and not for punishing the person alleged to be guilty of disobedience. (182) P.L.R.
  23. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 2-A - Execution application - Application dealing with mode in which the assistance of the Court is required, it is mentioned to be by way of attachment, auction, sale of properties and other goods of the respondent - The mere fact that in the concluding para of the application, it is mentioned that the respondent be also sent behind the bars for contempt of the Court's order - Is not sufficient to say that the petitioner filed an application under Order 39, Rule 2A CPC. (183) P.L.R.
  24. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 2-A - Status quo was regarding existing position of the suit property and not regarding its user - Mere placing of Benga and Bitora (Strack of dung cakes' which is moveable property, it cannot be said that there was any violation of status quo  order - Even installation of fodder cutting machine would not be violative of status quo order.  (174) P.L.R.
  25. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 2A - Person who is not a party to the suit is proceeded against in order to punish him it is essential that he should be made a party to the proceeding for violation and it should be brought home by sufficient and unimpeachable evidence that he had been guilty of abetting violation of injunction - After the status quo orders were passed by the learned Trial Court the ownership in the property was passed on to the Respondent was not a party to the suit - He had in fact moved an application for being made a party under Order 1 Rule 10 CPC which was disallowed - There being no order against the Respondent No.2 herein he could not have been said to have disobeyed the order of this Court and further he cannot be visited with the consequence of attachment of property without being heard.  (179) P.L.R. (Del.)
  26. Civil Procedure Code, 1908 (V of 1908) Order 39, Rule 7(1)(c) - Application for directing the respondent to submit himself for DNA test or any other test required to ascertain his paternity for just decision of the case - Dismissed - Provision deals with detention, preservation, inspection of any property subject matter of such suit or as to which any question may arise therein - Respondent No.1 cannot be said to be subject matter of the suit, to invoke the provisions of Rule 7 for the purpose sought to be achieved - DNA Test.  (182) P.L.R.


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