HIGH COURT OF RAJASTHAN
Click here to view full judgement.
(1.)The circumstances that give rise to this revision may briefly be stated thus : - - Soniya brought a suit against Bhairun and others in the court of the Assistant Collector, Jaipur, on 9.8.55 for grant of a permanent injunction to restrain the defendants from interfering with the possession of the plaintiff over the land in dispute. Simultaneously with the plaint, an application was presented for grant of a temporary injunction on the ground that the defendants were threatening to dispossess the plaintiff by taking the law in their own hands. A notice was issued to the defendants to show cause against the application and an interim injunction in the meanwhile was issued against them on 8.9.55. The trial court refused to extend the interim stay till the disposal of the suit on the ground that the defendants had been bound down under Sec. 107 Cr.P.C. to keep the peace. On 11.12.55, the plaintiff put up a fresh application for issue of a temporary injunction. After hearing the parties and examining the revenue record that was produced before it, the trial court came to the conclusion that Bhairun defendant was in possession of the land, that the plaintiff had failed to prove that the standing crop was his and was in danger of being wasted. On these findings, the application was rejected. On 15th Feb. 1956 the plaintiff applied for appointment of a receiver. The trial court, by its order dated 30.4.57, held that the plaintiff was in possession of the land at the time of the institution of the suit, that the cultivation by the defendants in Svts. 2012 and 2013 was doubtful, that the destruction of the carrot crop suggested that the destroyed crop was of the plaintiff as the defendant would not have destroyed his own crop and that the "surrender of the subject of the mortgage" was not proved. The trial court, therefore, directed the appointment of a receiver under O. 40, R.1 C.P.C., read with sec. 212 of the Rajasthan Tenancy Act. The defendants went up in appeal against this order before the Additional Commissioner, Jaipur, but met with no success. Hence this revision.
(2.)We have heard the learned counsel for the parties and have examined the record as well. It has been held by the Board in a number of cases that the grant of a temporary injunction is a discretionary matter and when the lower courts have exercised their discretion in a particular manner it should not be interfered with unless some provisions of law have been disregarded by them. We shall confine our attention to this aspect of the case alone.
(3.)It has been argued by the applicants counsel that the law on the subject is contained in sec. 212 of the Rajasthan Tenancy Act and that the provisions contained in O. 40 R.1 C.P.C. arc inapplicable to cases under the Rajasthan Tenancy Act. It has been replied by the learned counsel for the opposite party that the provisions of O. 39, R. 1 are not inconsistent with the provisions of Sec. 212 of the Rajasthan Tenancy Act, but are supplementary as they provide for cases not covered by that section. And hence they can be allowed to govern the case. O. 39 C.P.C. deals with temporary injunctions and interlocutory orders. R. 1 of this order lays down that where in a suit it is proved by an affidavit or otherwise that any property is in danger of being wasted, damaged or alienated by any party to the suit, or that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors the court may grant a temporary injunction to restrain such action. These provisions with a little change in phraseology have been incorporated in Sec. 212(1) of the Rajasthan Tenancy Act. A material addition is, however, to be found in this sub - section as the last clause runs thus J - -"the Court may grant a temporary injunction and, if necessary, appoint a receiver." Sub -sec. (2), however, lays down that any person against whom an injunction has been granted, or in respect of whose property a receiver has been appointed under sub -sec. (1) may offer cash security to compensate the opposite party. There is an apparent conflict between these two sub -sections. From a perusal of sub -sec.(l), it would appear that a receiver may be appointed only where a temporary injunction has been granted. Sub -sec. (2) however, envisages the possibility of the appointment of a receiver even without the grant of a temporary injunction as the preposition or has been used in between the two contingencies. To resolve this conflict it would be desirable to hold that the law confers a wide discretion upon the court which may be exercised either by appointing a receiver or by granting temporary injunction or by doing both if necessary.
Copyright © Regent Computronics Pvt.Ltd.