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SMT. RAJNIBAI @ MANNUBAI
v.
SMT. KAMLA DEVI AND ORS.
JANUARY 12, 1996
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]
Code qf Civil Procedure, 1908 :
Order 39 Rules 1 and 2, S.151-Suit for declaration of title
shnpliciter--Court has power to grant ad interim injunction pending
suit-Merely because there is no dispute as regards the corporeal right to
property entitlement to avail re1nedy not qffected--Also under its inherent
powers Court could protect the rights of parties pending suit-Matter remitted
to Hip,h Court tn consider and dispose the case 011 merits.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2525 of 1996.
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From the Judgment and Order dated 20.1.93 of the Madhya Pradesh
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High Court in M.A. No. 337 of 199 l.
Dhruv Mehta, S.K. Mehta and Fazlin Anam for the Appellant.
Sunil Gupta Shri Narain and Sandeep Narain for the Respondents.
The following Order of the Court was delivered :
Leave granted.
We have heard the counsel on both sides. This appeal by special leave
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. 33719 l.
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 I 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
478
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RAJNIBAI (SMT.) v. KAMLA DEVI (SMT.)
479
but nol 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 properly 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 Onjer
39 Rule I 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 I 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 would
be whether he will be entitled lo the declaration sought for. When he seeks
1to protect his possession, if he is otherwise entitled according to law,
necessarily t\le Court has to consider whether protection is to be given to him
pending the suit. Merely because there is not 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 I 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 I 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.
G.N.
Appeal allowed.
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