O39 R1 & 2
Querist :
Anonymous
(Querist) 21 February 2010
This query is : Resolved
Can a defendant move an applicartion under order 39 R1&2 and particularly when the relief sought is contrary to the relief sought by the plaintiff? Please cite a decided case on the subject.
Guest
(Expert) 21 February 2010
cannot filed under o 39 r 1... but if in usual course property in dispute in a suit is in danger of being damaged or trying to take possetion of disputed property by plaintiff then defendant can file application under section 151 cpc.
ORDER XXXIX
TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS
Temporary injunctions
1. Cases in which temporary injunction may be granted
1Where 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 execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to 2[defrauding] his creditors,
3[(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 be 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 3[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.
Parveen Kr. Aggarwal
(Expert) 21 February 2010
Mr. Anonymous,
Whether the defendant has made a counter-claim? If yes, then he can file an application for temporary injunction. Otherwise not.
Kiran Kumar
(Expert) 21 February 2010
can u pls mention the facts of the case and the stand taken by the defendant.
niranjan
(Expert) 21 February 2010
No relief can be sought by deft.without filing counter claim. So Mr. Praveen is right. But if the deft.is saying that possession of the property is with him, and can show it by documentary evidence,he can file appl.under this order to protect his possession.
Anish goyal
(Expert) 21 February 2010
Defendant also can seek temporary injunction if not under order XXXIX then under section 151.
Guest
(Expert) 21 February 2010
I agree with Mr.Kiran Kumar and elicit facts of the case for our clear-cut opinion - please mind that this is "experts" column.
