No Interim Injunction Under Order 39 Rules 1 And 2 CPC Can Be Passed Against Non-Party To Suit: Jammu & Kashmir & Ladakh High Court

The Jammu & Kashmir and Ladakh High Court has held that no interim injunction under Order 39 Rules 1 and 2 of Civil Procedure Code can be issued against non-party to the suit.

The Court was considering an Appeal against an order whereby an Application filed by the Appellants under Order 39 Rule 1 and 2 CPC was dismissed.

The bench of Justice Sanjay Dhar observed, "....no interim injunction could be granted against the respondent who is not a party to the appeal, even though he may be claiming his rights to the suit property through the appellants before the court below. The proper course open to the appellants was to file a fresh suit for injunction against the respondent and seek an interim injunction against the respondent in the said suit."

The Appellant was represented by Advocate N. A. Kouchai, while the Respondent was represented by Advocate Rouf Parray.

Facts of the Case

The Appellants had filed a Suit for preemption in respect of a land for exercising their right of prior purchase against their co-sharer who had sold the said land to one Mohammad Abdullah Sheikh. In 2007, the Suit was decreed in favour of the Appellants and the Defendants in the suit were directed to deliver possession of the land in question in favour of the Appellants. The Respondent herein purchased the land in question by virtue of sale deed and came into possession thereof. The Respondent also filed a civil suit during the pendency of the execution proceedings seeking a declaration and permanent injunction against the Appellants and one another. They sought declaration of the decree as null and void, with a further declaration that he is owner in possession of the suit land. 

An Application under Order 7 Rule 11 CPC came to be filed by the Appellants before the trial court, which came to be rejected. The said order was challenged by the Appellants by way of a Revision Petition, which eventually came to be rejected and he was given liberty to file an Application in terms of Order 21 Rule 99 of CPC before the Executing Court for determination of his rights in respect of the land in question.

In the meantime, the person who had purchased the land in question from the original owner challenged the judgment and decree by filing an Appeal and since the Appeal was time barred, an Application seeking condonation of delay was also filed. During the pendency of the proceedings relating to condonation of delay application, the Appellants moved an Application seeking a temporary injunction against the Respondent so as to restrain him from raising any construction on the suit land. The Respondent who is not a party to the Appeal contested the Application by filing his reply, in which he submitted that he purchased the land in question by virtue of sale deed and the same is owned and possessed by him for the last more than 13 years. It was claimed by the respondent that the Appellants have no right to cause interference in the land in question. The District Court dismissed the Application of the Appellants on the ground that an interim injunction cannot be passed against a stranger to the case.

The Appellants challenged the impugned order on the grounds that the Respondent is a transferee pendente lite and in law he has no right to raise construction on the suit land which is the subject matter of the decree. It was further contended that the Appellants have a decree of civil court in their favour, therefore, there is a prima facie case in their favour but this aspect of the matter was conveniently ignored by the trial court while passing the impugned order.

Reasoning By Court

The Court at the outset noted that there is nothing in the provisions contained in Order 39 Rule 1 and 2 CPC that would vest power with a Civil Court or with Appellate Court to pass an interim injunction against a person who is not a party to the proceedings.

"An interim injunction is granted in favour of a party to the proceedings so as to preserve the subject matter of lis till the disposal of the suit with a view to determine the claims and counter claims put forward by the parties in respect of the suit property. A person who is not a party to the proceedings obviously has not put forward his claim with regard to the suit property before the court. Thus, there is nothing to be investigated in respect of the claim that such person may have with regard to the suit property. Therefore, there can be no justification for grant of an interim injunction in respect of a claim which is not even projected by a person before the court in a particular proceeding. It is not the scope of Order 39 Rule 1 and 2 CPC to pass interim directions against a person who is not a party to the suit or the appeal," the Court observed.

It thus ruled that the Appellants cannot seek an order against the respondent in the appeal before the court below, as the respondent is not a party therein.

Cause Title: Mohammad Shaban Ganai & Anr. vs. Mushtaq Ahmed

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