@ Mannubai Vs. Smt. Kamla Devi & Ors  INSC 54 (12 January 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
1996 AIR 1946 1996 SCC (2) 225 JT 1996 (1) 706 1996 SCALE (1)730
O R D
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.
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
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
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
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 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.
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.
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
quo would continue till the disposal of the appeal in the High Court.
appeal is accordingly allowed. No costs.