D. L. MEHTA, J. - (1.) THIS Misc. Civil Appeal is directed against the order dated 1. 09. 1989, passed by the learned Additional District Judge, No. 6 Jaipur City, Jaipur, in Civil Misc. Application No. 90/1989.
(2.) BRIEF facts of the case are that the plaintiff and his brothers are having the chequered history of litigation and various cases are pending in the courts. Plaintiff filed a suit for partition against his brothers and is pending in the trial court. He has filed this suit and prayed that the property marked as MNSPOVW in the map and plain may be declared as a joint property and permanent injunction may be issued restraining the defendant to alienate the property. A further prayer had also been made that the injunction may be issued restraining the defendant to raise construction on any part of the property which is in dispute. A third suit has also been filed and which is pending about a piece of land on which a cinema house has been constructed. One of the questions in dispute is whether the disputed property is personal property or the ancestral property. Learned District Judge rejected the application on the ground that the defendant is having huge property and if the plaintiff succeeds and defendant looses the case, the defendant may be asked to hand-over the other property and the share out of the remaining property. I will not like to entering to the controversy about the facts of the case. Section 94 of the CPC deals with the supplemental proceedings like the proceedings provided under Sec. 39 and 0. 40 of the CPC. Under S. 94 of the CPC a duty has been cast on the court that in order to prevent the ends of justice from being defeated the court may, make such other interlocutory orders, as may appear to the court to be just and convenient. In clause (8) of S. 94 of the CPC the 'words' other interlocutory orders' are very important and in fact, these words govern the orders unders which the interlocutory orders are passed. Under 0. 39 temporary injunctions are issued or refused by the court and this is the interlocutory order. It is necessary for the welfare of the society and also for the ends of justice that while passing the order under 0. 39 or any other order, the court should take note of the provisions ofs. 94 (E)in particular and should pass such order which may be just and proper and may compensate the party against whom the interlocutory order is passed if he ultimately succeeds in the suit. This court, in various cases, have discussed that there should be a safeguard in favour of the person against whom the temporary injunction is issued. This court has also held that while issuing a temporary injunction, the court should exercise the power under clause (E) of S. 94 and should pass the order that in case the person against whom the temporary injunction is issued and granted, succeeds, he should be compensated for the loss suffered by him on account of temporary injunction issued against him. This court is of the view, that the quantum of compensation should be fixed at the time of granting an injunction that the parties against whom the temporary injunction is granted, if ultimately wins may not have to go to the court again and he may recover the compensation or damages as a decree, such order will be executable just like a decree and the undertaking should be taken from the party in whose favour the injunction is issued. In the instant case, the position is reverse here. The plaintiff has come with a case that he is the co-owner or co-sharer of the specified property and the property is being alienated or is likely to be alienated by the defendant. It will not be out of place here to mention that the disputed property was acquired by the erstwhile state of the Jaipur, however, after prolong litigation the propetty was released and the main contestant was the defendant. The plaintiff is one of the brother and he claims right in the property on the ground that this is an ancestral property.
(3.) IN this suit, the plaintiff has also come with a case that he has a right in the property and the property cannot be alienated. He has also filed a suit for partition. IN such circumstances, it is also necessary to safe-guard the interest of the party whose application for the grant of temporary injunction has been rejected. There may be a contingency that the defendant may alienate the property and in that case, the plaintiff may not be able to execute the decree easily for one reason or the other and there may be number of difficulties in the matter of execution of decree even if it is executable. The other contingency which may arise is about the construction on the. property. IN fact, in this suit the plaintiff has said that it is a common property owned by all of them and the defendant has no right or interest in his individual capacity and he cannot be allowed to raise construction. Plaintiff wants the partition of the property. The application for grant of temporary injunction has been rejected by the trial court on one of the ground that the defendant is having huge immovable property and even if the plaintiff succeeds he can get his share out of the property and there will be no difficulty in getting the share. It will not be out of place here to mentioned that due weightage will have to be given while applying the provisions of 0. 39 or 40 of the CPC and also other provisions relating to the interlocutory orders. S. 94 of the CPC deals with the supplementing proceedings. It will not be out of place here to mention that under S. 39, there is no specific provision by which the defendant can get an injunction against the plaintiff. However, under Sec. 94 clause (b), there is a specific provision that the court may issue any order against the defendant or the plaintiff which may be just and proper in the facts and circumstances of the case. I will have to take into consideration the words 'other Interlocutory orders' as used in clause (e) of S. 94 of the CPC. The words other denotes that it is supplementary in nature and it is in addition to the interlocutory order which can be passed under 0. 39 or under 0. 40 of the CPC. The legislature in its wisdom has used the word 'others' specifically in clause (e) of S. 94 of the CPC to clarify the position that the orders which are necessary and which are just and proper can be passed though not provided under 0. 39 or 0. 40 of the C. P. C. The order can be dealtwith as interlocutory orders. The application for grant of temporary injunction or rejecting the application for grant of temporary injunction is interlocutory order which is generally passed under O. 39 of the CPC. However, sometimes, it is passed also under exercise of the powers given under S. 151 CPC though very sparingly. S. 94 of the CPC directs the court to safeguard the interest of both the parties. S. 94 of the CPC directs the court to safeguard the interest of both the parties. Suppose, the plaintiff fails ultimately and the property is alienated before the decree is passed by the court in favour of the plaintiff there will be a further litigation and the decree may or may not be executable on number of grounds. In the same way, in a suit for partition if the plaintiff succeeds and his application for grant of temporary injunction is rejected then he is deprived of his right of use and occupation and he will be looser even after succeeding in the case because of the deprivation of the right of use and occupation of the property for decades. Thus, it is necessary for the court to exercise the powers of clause (E) of Sec. 94 of the CPC to safeguard the interest of the plaintiff also where the application of grant of temporary injunction is being rejected. Thus, S. 94 of the CPC enlarge the scope of order 39 and it creates the duty of the Court in favour of the plaintiff for passing such orders which may be just and proper and the plaintiff may suffer on account of refusal of the application for grant of temporary injunction. Thus, the benefits which is extended now generally, in the case of grant of temporary injunction, can also be extended in cases of refusal of application for grant of temporary injunction. ;