O.P. Trivedi, J. - (1.) This petition in revision has been filed by the plaintiff Dilip Kumar who had filed a suit for injunction against the opposite party stating that the opposite party was interfering with his construction of a certain structure. During pendency of the suit the plaintiff-petitioner prayed for a temporary injunction restraining the defendant from interfering with making the construction. The opposite party's defence was that the land on which the disputed construction was put up was in his possession; that he possessed right of way on the land. The defendant also moved an application for temporary injunction against the plaintiff petitioner before the Munsif stating that the construction in dispute had been put up but the plaintiff threatened to use the same as a latrine. The trial Court grant a temporary injunction against the plaintiff also on the report of the commissioner that the disputed construction opened on the door of the defendant-opposite party. The plaintiff was restrained from making use of the construction as a latrine during pendency of the suit. Against the temporary injunction granted in favour of the defendant the petitioner appealed which was dismissed and therefore this revision.
(2.) The first contention of counsel for the petitioner is that a temporary injunction could not be granted by the Court in favour of the defendant under order 39 rule 2, Code of Civil Procedure and that the remedy of the defendant lay in filing a suit for permanent injunction against the plaintiff and for asking the relief of a temporary injunction in such a suit. The contention of the learned counsel that temporary injunction could not be granted in favour of the defendant by the trial court and could not be confirmed by the appellate Court Order 39 rule 2 of the Code appears to be sound so far as it goes as appears from the very reading of the language of rule 2 of Order 39. From the language of rule 2 of Order 39 it is plain beyond controversy that a temporary injunction can be asked for and granted only by the plaintiff and this contention is also supported by Kangabam Birmangol Singh v. Laimayum Ningol Aribam Ongbi Madhabi Devi, A.I.R. 1962 Manipur 55 . Learned counsel further contended that a temporary injunction could not be granted in favour of the defendant under Sec. 151, Code of Civil Procedure also. This contention must be rejected as untenable in view of the Supreme Court decision in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, A.I.R. 1962 SC 527 . In this case the Supreme Court held that the courts possess power to grant temporary injunction in a given Case not strictly covered by Order 39 with a view to do justice to the parties. The question still remains whether temporary injunction could be granted by the trial court in favour of the defendant in exercise of inherent powers under Sec. 151, Code of Civil Procedure. To my mind such injunction can be granted by a court in suitable cases under its inherent powers for the ends of justice in favour of the defendant and against the plaintiff as held by the Supreme Court in Manohar Lal Chopra's case. If a temporary injunction can be granted under Sec. 151 in favour of the plaintiff there appears to be no reason why in suitable cases temporary injunction cannot be granted by the Court under its inherent powers in favour of the defendant also and to my mind there is no substance in the argument that this relief could be obtained by the defendant only by filing a regular suit for permanent injunction against the plaintiff. In the case of B.F. Verghese v. Joseph Thomas, A.I.R. 1957 Travancore-Cochin 286 a mandatory temporary injunction was passed in favour of the defendant the validity of which was challenged before the High Court of Travancore-Cochin. The following observations made by the Court have relevance for the present discussion : "The Court below got over the difficulty by saying that if inherent powers of the Court could be exercised in exceptional circumstances on behalf of the plaintiff there was no reason not to extend the same jurisdiction in similar circumstances on behalf of the defendant and it went on to find that the circumstances here were sufficiently exceptional as to require its intervention. I entirely agree with this reasoning. It is observed in Mulla's C.P.C. 12th Edition p. 1160 'The Courts in England have the power to grant mandatory injunction on interlocutory applications. And so have chartered High Courts in the exercise of their ordinary original jurisdiction. The same power is possessed by Courts in the moffussil'. The case Collison v. Warren, (1901) 1 Ch. 812 , cited in the English Annual practice is also very instructive in this connection. Buckly, J. posed with this question at the initial stage as to whether the defendant can move for an injunction against the plaintiff without filing a counter claim or issuing a writ in a cross action and answered the same in the light of earlier authorities by saying that in some cases and only in some cases he can, viz., where his claim to relief arose out of the plaintiffs' cause of action or was incidental to it." Similar view was expressed in the case of Rattu v. Mala, A.I.R. 1968 Rajasthan 212 . In that case also the question arose whether a temporary injunction can be passed in favour of the defendant. This argument was repelled placing reliance on a case of the Madras High Court reported in Sivakami Achi v. Narayana Chettiar, A.I.R. 1939 Madras 495 and the Travancore-Cochin case reported in B.F. Verghese v. Joseph Thomas, A.I.R. 1957 Travancore Cochin 286 . I am of the view that in circumstances which are of an exceptions nature the courts can interfere in favour of the defendant for the ends of justice and issue an injunction on the defendant's motion restraining the plaintiff if the defendant's claim to such relief appears to arise out of plaintiffs' cause of action or was incidental to it for otherwise it would be patently unjust to drive the defendant to a separate litigation and thereby to take upon himself, the burden of some additional expenditure if the relief for temporary injunction arises out of plaintiffs cause of action in the suit pending against him or is incidental thereto. In the present case it will appear that the temporary' injunction restraining the plaintiff's use of the disputed construction as a latrine was apparently based on the ground of threatened nuisance to the defendant. It is plain that the claim for relief of injunction on the ground of nuisance was directly the result of and incidental to the plaintiff's cause of action, namely, the disputed construction. In a situation of this kind to my mind the courts which exist for doing justice between parties must exercise their inherent powers under Sec. 151, Code of Civil Procedure in favour of the defendant by restraining the plaintiff through a temporary injunction. Learned counsel also placed reliance upon the provision contained in Sec. 37 (1) of the Specific Relief Act of 1963 which reads as follows : "37(i). Temporary injunctions are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit and are regulated by the Code of Civil Procedure, 1908." On the basis of Sec. 37 (1) above the learned counsel contends that the Specific Relief Act being a special enactment dealing with the grant of injunctions it must follow from this section that temporary injunctions can be granted strictly in accordance with the provision contained in Order 39, Code of Civil Procedure and not under the inherent powers of the Court contained in Sec. 151. Code of Civil Procedure. Such an argument to my mind cannot be accepted on a plain reading of Sec. 37 (1) of the Specific Relief Act because the section says that temporary injunctions are granted at any stage of the suit and are regulated by the Code of Civil Procedure. 1908. It does not say that the grant of temporary injunction is regulated by Order 39 of the Code. In fact the section is so generally worded as to include in its sweep Sec. 151 of the Code also, the phrase being "regulated by the Code of Civil Procedure, 1908". If the intention of the legislature had been that temporary injunctions shall be granted exclusively within the framework of Order 39 then the words of Sec. 37 (1) would have been "regulated by Order 39 of the Code of Civil Procedure, 1908."
(3.) For the aforesaid reasons I am of the opinion that there is no merit in this revision. The courts below were right in the view that the trial court possessed jurisdiction to grant temporary injunctions. As there was no error of jurisdiction the revision fails and is dismissed with costs. Revision dismissed. ;