Full Judgment Text
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PETITIONER:
SMT. RAJNIBAI @ MANNUBAI
Vs.
RESPONDENT:
SMT. KAMLA DEVI & ORS.
DATE OF JUDGMENT: 12/01/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
1996 AIR 1946 1996 SCC (2) 225
JT 1996 (1) 706 1996 SCALE (1)730
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard the counsel on both sides. This appeal by
special 1eave arises from the order of the single Judge of
the Madhya Pradesh High Court at Jabalpur Bench dated
January 20, 1993 made in M.A. No.337/91.
The appellant laid the suit for declaration of
prescriptive title to the property from 1974 in his own
right and perfected the title thereto by adverse possession.
He also filed an application under Order 39 Rule 1 and 2 CPC
seeking temporary injunction restraining the respondent from
interdicting his possession pending the suit. The trial
Court granted the injunction but on appeal it was reversed
by the learned single Judge in the impugned order. The High
Court has concluded that when there is no dispute as regards
the incoporeal right in litigation, the declaratory suit is
only a right to the property but not to the right itself;
Order 39 Rules 1 and 2 CPC could be availed of only when the
property, the subject matter thereof, is in danger of being
wasted, damaged or otherwise being dealt with. In a simple
suit for declaratory nature without any consequential relief
there cannot be any dispute as regards the property because
the dispute is not about the property but to the entitlement
of the right sought in respect of the property which itself
is directly involved in the suit but not in an Interlocutory
order. Consequently, it was held that the grant of interim
injunction is beyond the jurisdiction of the Court under
Order 39 rule 1 and 2. We are of the view that the view
expressed by the High Court is not correct in law. In a suit
for declaration of title simpliciter, the Court has power
under Order 39, Rules 1 and 2 or even in Section 151 to
grant ad interim injunction pending suit.
Admittedly, the appellant is in possession of the
property. In view of his apprehension that there is a threat
to his possession, his only remedy wou1d be whether he will
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be entitled to the declaration sought for. When he seeks to
protect his possession, if he is otherwise entitled
according to law, necessarily the Court has to consider
whether protection is to be given to him pending the suit.
Merely because there is no dispute as regards the corporeal
right to the property, it does not necessarily follow that
he is not entitled to avail the remedy under Order 39, Rules
1 and 2 CPC. Even otherwise also, it is settled law that
under Section 151 CPC, the Court has got inherent power to
protect the rights of the parties pending the suit. Under
these circumstances, the view expressed by the High Court
that application itself is not maintainable is clearly
illegal and erroneous. The application under Order 39, Rules
1 and 2 is maintainable.
The matter is remitted to the High Court to consider
the case on merits and dispose it of according to law, since
the High Court did not consider the case on merits.
Status quo would continue till the disposal of the
appeal in the High Court.
The appeal is accordingly allowed. No costs.