SMT. RAJNIBAI @ MANNUBAIversusSMT. KAMLA DEVI AND ORS.

                                                                                           \    '



A                          SMT. RAJNIBAI @ MANNUBAI
                                       v.                                                           ).
                           SMT. KAMLA DEVI AND ORS.

                                  JANUARY 12, 1996

B                 [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
c   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.

D         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2525 of 1996.

         From the Judgment and Order dated 20.1.93 of the Madhya Pradesh                   ~
    High Court in M.A. No. 337 of 199 l.

          Dhruv Mehta, S.K. Mehta and Fazlin Anam for the Appellant.
E         Sunil Gupta Shri Narain and Sandeep Narain for the Respondents.

          The following Order of the Court was delivered :

          Leave granted.                                                                   ·<


F          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
G   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
H   incoporeal right in litigation, the declaratory suit is only a right to the property
                                            478
I                       RAJNIBAI (SMT.) v. KAMLA DEVI (SMT.)                       479
    but nol to the right itself; Order 39 Rules 1 and 2 CPC could be availed of            A
    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
                                                                                           B
    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.                                                               c
             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       D
     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,     E
     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          F
    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

    G.N.                                                             Appeal allowed.