• Injunction under order 39 rule 1 and 2

X filed a i.A for interim injunction against Y under order 39 rule 1&2
X could not makeout prima facie case Y could demonstrate prima facie case and also balance of convenience in his favour
can the court dismiss petition of X and pass interim injunction orders 
infavour of Y in the same peition ?
Asked 4 years ago in Property Law
Religion: Hindu

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27 Answers

Hello,

Yes the court can pass an order in favour of Y but under sec 151 of the cpc.

Hope this helps.

Regards

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

1) if X has failed to make out a primafacie case his application for interim reliefs would be rejected and no interim reliefs granted

2) suit would not be dismissed

3) Plaintiff has to make out a case during trial

4) Y can take out application for interim reliefs in same suit

Ajay Sethi
Advocate, Mumbai
87975 Answers
6207 Consultations

5.0 on 5.0

For that a counter claim need to be filed in as the case is of the plaintiff so court can reject the application of the plaintiff and respondent along with the counter claim can pray for injunction in his favour.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

In suit you have to take out notice of motion for grant of reliefs sought by you

Court cannot award reliefs not claimed by you

Ajay Sethi
Advocate, Mumbai
87975 Answers
6207 Consultations

5.0 on 5.0

This is my response to you:

1. The Court will dismiss the petition of X;

2. If Y files a reply to the application of X then court can decide on merits and pass interim injunction in favour of Y;

3. Otherwise Y can take out a separate application against X for interim injunction.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Court would not grant any reliefs in favour of Y as no such reliefs have been claimed by Y

Ajay Sethi
Advocate, Mumbai
87975 Answers
6207 Consultations

5.0 on 5.0

Hi

In order to get an interim injunction parties the plaintiff should able to convince the court on

a) Prima Facie Case,

b) Balance of convenience and

c) Irreparable losses in absence of interim injunction.

in your case, if X who is the petitioner could not make out a prima facie case and hence his prayer for interim injunction was denied.

But in accordance to CPC, the options for Y(Defendant) to seek Interim injunction is LIMITED .

Under Order 39 Rule 1(a), there should be a counter claim or a Writ in cross Action by Y that the interim relief sought is on account of plaintiff cause of action for Y to claim Interim Injunction.

Order 39 Rule 1(b) and 1(c) are not applicable to Defendants and hence the Scope of Order 39 becomes restricted to Order 39 Rule 1(a) for the defendant to claim interim injunction.

Since the option for Y to claim relief as a Defendant is Restricted/Limited to Order 39 , Rule 1 (a), The next best option would be to impress upon the court to exercise its inherent jurisdiction under section 94 of CPC r/w 151 of CPC to grant the relief of injunction

In order to get the court to exercise its inherent jurisdiction under section 94 r/w 151 of CPC, Y should be able to convince the court that

a) such an Interim injunction order is necessary to meet the ends of justice and

b) To prevent abuse of process of the court by X and

c) Prima facie case, balance of convenience in favour of Y.

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

1. Well, without knowing the contents of the petition , it is very difficult to advise on the merit of the case.

2. Passing order of interim injunction depends on discretion of the court and there is no hard and fast formal for this. The urgency in the prayer, prima facie case and balance of convenience and inconvenience is only a guiding factor while considering injunction petition.

3. Any of the parties getting deprived of the order passed by the coyrt can prefer miscellaneous appeal before the district judge under order 43 CPC.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Yes a fresh application has to be filed in same application the court shall not grant interim.injucntcion that is why I asked you to file a counter claim and along that you can file an application for interim injunction.

In same application the court shall not grant it will reject same if plaintiff doesn't satisfy all the ingredients.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) Court judgments :

a) Harishchandra Narayan Maurya vs Rajendraprasad Dargahi Varma on 19 July, 1996

Equivalent citations: 1997 (1) BomCR 28

b) Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal on 16 November, 1961

Equivalent citations: 1962 AIR 527, 1962 SCR Supl. (1) 450

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

I agree to your concern court can invoke the power under 151 cpc and can make order it deem fit for justice but in usual course the court rather than invoking power prefer that party should make an application before court raising counter claim as the provision in order 39 is bit restrictive to plaintiff. And more over it was my first hand experience today itself in similar matter of some other advocate before civil court wherein court though accepted the application but asked party that it should raise it along counter claim. Moreover the nature of e

Urgency goods property involved differ from case to case.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

If the person Y in possession of the land then the court will dismiss the injunction suit. it is mandatory for the plaintiff to prove that balance of convenience in his favour, he would have suffered irreparable loss and prima facie case is made out in favour of the plaintiff. These are the basic ingredients for relief of injunction. If plaintiff fails to prove these ingredients is no longer be entitled to get relief from the court.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

Order 39 of the code of civil procedure requires from the plaintiff to prove his case in order to get any relief from the court.If there is any exigency and the case does not cover under Order 39 of the code of civil procedure then the court is empowered to pass any order under section 151 of the code of civil procedure which is just, proper and reasonable. If matter of injunction is raised by the plaintiff at the later stage of the suit then the court will pass order in favour of defendant Y upon failure of  plaintiff to establish his case for injunction.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

It depends on what grounds that he is seeking injunction against Y and how strongly Y defends his interest.

If prima facie case is not proved and also the balance of convenience is not in his favor, then the court may dismiss the IA seeking ad-interim injunction.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

Any SC judgements fitting the above scenario ? or any High Court rulings in respect of above scenario. thanx

There are lot of judgments upholding dismissal of injunction petition, but the IAs are generally revision and not appellable, however you can get judgments when you browse indiankanoon.in or livelaw.in

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

Y always has provision to make fresh application...but to avoid duplicacy of proceedings can the court pass orders in the same petition filed by X.?

Since the relief was originally sought by X against Y, hence Y is under comfortable position especially if the petition filed by X had been dismissed, hence how do you think that Y can claim injunction agaisnt X especially without filing a fresh petition from his side.

It may not be a counterclaim case.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

counter claim will be raised in the main suit....but can the court give orders in favour of Y in a Interlocutory petition filed by X where x's claim is rejected...and Y succeeded in proving ingridients of O39 R1&2.

can the court give orders U/S 151 C.P.C ? any citations will be appreciated.

You must understand the position first.

It is X who is approaching court seeking relief against Y and not Y against X.

Therefore Y has no grievance against X, if at all he has it may not be for the same reason.

Even otherwise he cannot make a counterclaim in the same IA, he has to file a fresh petition from his side seeking relief of interim relief agaisnt X for the reasons and grounds that he may rely upon.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

thanks for your appreciation

Ajay Sethi
Advocate, Mumbai
87975 Answers
6207 Consultations

5.0 on 5.0

Thank you Sir it was great discussion with you along with your feedback, please feel free to put up any other query you have we will try our best to help you.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You are welcome for your appreciations

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

can the court dismiss petition of X and pass interim injunction orders

infavour of Y in the same peition ?

No any injunction in favor of Y can not be passed since the prayer was asked by X and the court can pass an order only to the limited extent of the prayer

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

The Supreme Court in Shehla Burney Vs. Syed Ali Mossa Raza has reiterated that no relief can be granted against a party unless it has been specifically claimed in the suit or petition, as mandated by Order VII Rule(s) 5 & 7 of the Code of Civil Procedure.

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Order VII, Rule 7 of CPC is also relevant and which is also set out below:-

"7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Y will have to approach the court separately in order to take any relief.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

hi mr.shubham...counter claim will be raised in the main suit....but can the court give orders in favour of Y in a Interlocutory petition filed by X where x's claim is rejected...and Y succeeded in proving ingridients of O39 R1&2.

can the court give orders U/S 151 C.P.C ? any citations will be appreciated...reg

As told above, the same can not be done. A separate application will have to be moved.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Hi,

The court will dismiss the petition filed by X and Y need to make fresh application. The counter claim may also be raised.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Dear Sir,

Entire Civil jurisprudence depends upon Order 39 Rule 1 and 2 C.P.C it is not known that whether Y filed application under Order 39 Rule 4 C.P.C counter claiming injunction in his favour. In such case Court could have dismissed interim application filed by X and further could have allowed interim application filed by Y. It all depends upon documents produced before the Court. There are N number of cases on this issue but facts to be matched to a particular judgment. Further it will be implied that injunction in favour of Y granted, since the application of X was rejected.

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Order 39 Rule 4 CPC

4. Order for injunction may be discharged, varied or set aside.- Any Order for an injunction may be discharged, or varied, or set aside by the court, on application made thereto by any party dissatisfied with such order:

Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular arid the injunction was granted without giving notice to the opposite party, the court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

Provided further that where an Order for injunction has been passed after giving to a party an opportunity of being heard, the Order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the court is satisfied that the Order has caused undue hardship to that party.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

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