Can a defendant file an application under Order XXXIX Rule 1 & 2 CPC against the plaintiff ?

ORDER XXXIX-TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Temporary injunctions1 . Cases in which temporary injunction may be granted— Where in any suit it is proved by affidavit or otherwise—(a)that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in a execution of a decree, or(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [385][defrauding] his creditors, [386][(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,]the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [387][or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.2 . Injunction to restrain repetition or continuance of breach—(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit. "It can be inferred from the provision that the Court is empowered to grant three types of orders under three different and distinct situations. Firstly when the property in dispute is in danger of being wasted, damaged or alienated or wrongfully sold in execution of a decree, temporary injunction to prevent the same can be granted. The second situation arises when the disputed property is under the threat of being removed or disposed of by the defendant with the intention of defrauding his creditors who include the plaintiff also. The third situation is when the defendant threatens to dispossess the plaintiff or otherwise causes injury to the plaintiff in respect of disputed property.Clause (a) of Order XXXIX rule 1 CPC provides that where in any suit it is proved by affidavit or otherwise, that any property in dispute in a suit is in danger or being wasted, damaged or alienated “by any party” to the suit, or wrongfully sold in execution of a decree, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property.It can be envisaged that in case the plaintiff by way of the suit filed wants to harm or injure the interest of the defendant which is the subject matter of the suit then defendant can take the recourse by fliing an application under Order XXXIX Rule 1(a) of CPC.Q: Can a defendant file an application under Order XXXIX Rule 1 & 2 CPC against the plaintiff in the same suit wherein the plaintiff has file the suit against the defendant under Order XXXIX Rule 1 & 2 CPC ?It's only under Clause (a) of Order XXXIX rule 1 CPC which provides a recourse for either of the party, however, the words “the defendant threatens” appearing in Clauses (b) and (c) of rule 1 of order XXXIX CPC make it clear that the Court can grant an order of temporary injunction only in favour of the plaintiff because the Legislature has expressly not included the words “plaintiff threatens” and also not used the words “any party to the suit” in these clauses. The Legislature has consciously used the words “any party to the suit” in Rule 1(a) of order XXXIX CPC but the same is conspicuously missing in Clauses (b) and (c).Apex Court in MANOHAR LAL CHOPRA V. RAI BAHADUR RAO RAJA SETH HIRALAL (AIR 1962 SC 527) held that the defendant can maintain an application under Order XXXIX Rule 1 and 2 for an injunction against the plaintiff by making a distinction between a suit for partition and separate possession and a suit for bare injunction.The said proposition/point of law was interpreted by Karnataka High Court in MT.SHAKUNTHALAMMA W/O CHINNAPPA, Vs SMT.KANTHAMMA, W/O LATE BHEEMANNA, which dealt with:-Scope of Order XXXIX Rule 1 & 2 CPCCONCEPT OF SAME CAUSE OF ACTION & SCOPE OF SECTION 151 CPCand finally settled the law point as under:-(i) Both the plaintiff and the defendant can maintain an application U/o XXXIX Rule 1(a) of the Code for the reliefs set out in the said provision;(ii) Insofar as relief under Order XXXIX Rule 1 (b) and (c) is concerned, such a relief is available only to the plaintiff and the defendant cannot maintain an application for the said reliefs in a suit filed by the plaintiff, irrespective of the fact that his right to such relief arises either from the same cause of action or a cause of action that arises subsequent to filing of the suit.

However it is open to the defendant to maintain a separate suit against the plaintiff and seek relief provided under Order 39 Rule 1(b) and (c) of the Code.(iii) In cases which do not fall under Order XXXIX Rule 1 of the Code, the Court has the inherent jurisdiction to grant the relief of injunction in its discretion, if it is satisfied that such an order is necessary to meet the ends of justice or to prevent abuse of process of the court and nothing in this Code shall limit or otherwise affect such inherent power of the court.

Case Law:- MT.SHAKUNTHALAMMA W/O CHINNAPPA, Vs SMT.KANTHAMMA, W/O LATE BHEEMANNA