Oral Judgment:

1. The present Appeal from Order is preferred challenging the order dated 6th October, 2023 passed by the Trial Court in Notice of Motion No. 1975 of 2022 in Suit No. 8582 of 1992 rejecting the Notice of Motion on solitary ground that the application has been taken out by Defendant No. 6(a), which is not maintainable under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure, 1908 [for short, “CPC”].

2. Learned counsel appearing for Appellant has taken this Court through the impugned order and would submit that without going into the merits of the matter, the Trial Court has rejected the application on the ground that the application is not maintainable. He points out the provisions of Order XXXIX, Rule 1(a) of CPC and would submit that the expression used in the said provision is “by any party” and as injunction was sought under Order XXXIX, Rule 1(a), the application was maintainable even at the instance of Defendant. He would draw support from the decision of this Court in the case of Nanasaheb s/o. Sakharam Bhalekar vs. Dattu s/o. Dhondiba Bhalekar and Others(1991 Mh. L.J. 685.).

3. Per contra, learned counsel appearing for the Respondent would point out the Affidavit in support of Notice of Motion to contend that the entire basis of filing of the application was an alleged communication informing Defendant Nos. 6(a) to 10 that the Plaintiffs are in the process of alienating the said property. He submits that Trial Court has considered the submissions of the parties and having held that there is no prima facie case, no balance of convenience and no irreparable injury will be caused, has rejected the Notice of Motion.

4. I have considered the submissions and perused the record.

5. The Notice of Motion was filed by Defendant No. 6(a) to 10 seeking the following reliefs :

                    “(a) That pending the hearing and final disposal of this suit, by an order and injunction this Hon'ble Court be pleased to restrain the Plaintiffs from creating third party rights, disturbing the possession of the suit property by Defendants No.6(a) to 10, creating encumbrances, alienating, dealing with, disposing of any part/portion of the suit property i.e. Plot No.145- A, TPS-II, Vile Parle C.S.No.1312(pt.) 1313, 1313 (1 to 9), Gokhale Bungalow, Ram Mandir Road, Vile Parle (East), Mumbai-400057 in any manner under any arrangement or agreement of any nature whatsoever.

                    (b) Ad-interim and interim relief in terms of prayer (a) be granted.

                    (c) Costs of the Notice of Motion be provided.

                    (d) Such other and further relief as deem fit and proper by this Hon'ble Court in the nature of the case.”

6. The application was therefore, for a restraint order against the Plaintiff from creating third-party rights and disturbing the possession of Defendant Nos. 6(a) to 10 and from creating encumbrance, alienating, dealing with, disposing of any part/portion of the suit property.

7. Mr. Kochare, on instructions, would submit that insofar as the part of relief sought in prayer clause (a) is concerned i.e. restraining the Plaintiffs from disturbing the possession of the suit property by Defendant Nos. 6(a) to 10, the said portion to be bracketed as Defendants do not seek any relief in this application in that respect.

8. In view of the submission canvassed by Mr. Kochare, the issue which arises for consideration is whether the application filed by the Defendant Nos. 6(a) to 10 seeking injunction against the Plaintiff from creating any third-party rights in respect of the suit property was maintainable. Order XXXIX, Rule 1 of CPC deals with the cases when temporary injunction can be granted and reads as under :

                    “1. 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 execution of a decree, or

                    (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

                    (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 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.“

9. The provisions came to be interpreted by this Court in the case of Nanasaheb s/o Sakharam Bhalekar vs. Dattu s/o. Dhondiba Bhalekar (supra) where the question was considered as to whether the Defendants in the suit for injunction filed by the Plaintiff can be granted injunction restraining the Plaintiff from obstructing his alleged possession and enjoyment of the property.

10. This Court considered the provisions of Order XXXIX, Rules 1 and 2 of CPC and has held that the mischief to be prevented by the temporary injunction in situations under clause (a) of Rule 1 can be from either of the parties. The reference to clause (a) of Rule 1 of Order XXXIX is in context of any relief being sought in respect of the property which is in danger of being alienated by any party to suit. The use of expression “any party” would indicate that in such an event, it is open to either Plaintiff or Defendant to seek the relief. In the present case, upon confining his relief only in respect of the relief against creation of third-party rights in respect of suit property, the relief would squarely fall under Order XXXIX, Rule 1(a) of CPC.

11. This Court in the case of Nanasaheb s/o. Sakharam Bhalekar vs. Dattu s/o Dhondiba Bhalekar (supra) has held that in respect of situations covered by first clause, injunction can be granted on application of either party whereas those situations which are covered in other clauses, the injunction can be granted in favor of Plaintiff and not in favor of Defendant. The Court noted that while framing Rules 1 and 2 of Order XXXIX, the legislature has dealt with different circumstances and in situations which are not dealt in by Order XXXIX, Court can have resort to Section 151 read with Section 94(c) and grant injunction in favor of any party. It further noted the decision of Karnataka High Court in the case of Suganda Bai vs. Sulu Bai(AIR 1975 Karnataka 137.) that a Defendant can move for a temporary injunction against the Plaintiff without filing a counter-claim only when and where the relief claimed arises out of plaintiff’s cause of action or is incidental to it. The legal position is settled by the decision in the case of Nanasaheb vs. Dattu (supra).

12. The inquiry which is required to be conducted by the Trial Court while deciding the application filed by the Defendant is whether the relief claimed arises out of Plaintiff’s cause of action or is incidental to it and the application for injunction is maintainable even without filing of counter-claim by the Defendant. The Defendant will have to satisfy the ingredients of Order XXXIX, Rule 1(a) to be entitled to the interim relief.

13. Though the Trial Court noted the submissions of the parties, the Trial Court did not enter into merits of the matter and dismissed the Notice of Motion only on the ground of maintainability being at the instance of the Defendant No. 6(a).

14. The finding that Defendant No. 6(a) failed to establish the prima facie case or balance of convenience or irreparable loss is not relatable to the merits of the matter, but to maintainability of the application. Considering the statutory provisions as well as the judicial pronouncements, the Notice of Motion at the instance of the Defendant No. 6(a) was maintainable.

15. In light of the above, the following order is passed :

                    ORDER:

                    [i] The Appeal from Order is allowed.

                    [ii] The impugned order dated 6th October, 2023 is hereby quashed and set aside.

                    [iii] The Notice of Motion No. 1975 of 2022 is restored to file.

                    [iv] The Trial Court to consider the Notice of Motion on its own merits and in light of statutory provisions and settled position in law.

16. Needless to clarify that the merits of the matter has not been gone into by this Court and all rights and contentions of the parties are expressly kept open.

17. In view of above, nothing survives for consideration in pending Applications, if any, and the same stand disposed of.