Madhya Pradesh High Court
Sanjay vs Ramesh on 17 March, 2026
1 SA-1228-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
SA No. 1228 of 2018
(SANJAY Vs RAMESH AND OTHERS )
Dated : 17-03-2026
Shri Vinay Gandhi, learned counsel for the appellant.
Shri Vimal Kumar Gangwal, learned counsel for respondents No.1 to 3.
Shri Anshul Rajpurohit, learned Government Advocate for the respondent / State.
Heard on I.A. No.2821 of 2026, an application filed for temporary injunction under Order XXXI Rule (1) and (2) read with Section 151 of the CPC.
2. The appellant has stated that the trial Court vide judgment and decree dated 28.10.2015, decreed the suit of the appellant / plaintiff, thereby declaring that the appellant is the owner and title holder of the land situated in Survey No.303, Ward No.3, Tilak Marg, Thandala, ad-measuring 0.22 hectares, with further relief of recovery of possession.
3. As regards the counter-claim, the trial Court by the aforesaid judgment and decree, dismissed the counter-claim of the respondents / defendants for declaration that the sale deed executed in favour of the appellant is null and void and also held that the respondents / defendants are not entitled to any mandatory injunction.
4. The defendants challenged the said judgment and decree before the first appellate Court by filing Regular Civil Appeal No.45-A/2017, which was allowed vide judgment and decree dated 15.02.2018, whereby the appellate Court held that the sale deeds dated 06.03.2000 and 14.03.2000 (Exs. P-1 and P-2) are not in accordance with law.
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5. Thus, the present appeal has been filed by the appellant/plaintiff challenging the judgment and decree dated 15.02.2018 of the first appellate Court. This appeal was admitted on 20.06.2018 on the following two substantial questions of law :
"(1) Whether the First Appellate Court has committed an error of law in passing the decree of perpetual injunction which was not prayed by the defendant in the counter claim ?
(2) Whether the First Appellate Court has committed an error of law in reversing the judgment of the trial court and dismissing the suit of the appellant without appreciating the material and reasonings on the basis of which finding relating to the title of the appellant was recorded by the trial Court ?"
6. After admission of the appeal, present application under order 39 rule 1 and 2 of the Code of Civil Procedure, 1908 has been filed by the appellant, whereby it has been stated that the respondents / defendants is changing the nature of the suit property by raising construction on the same. Learned counsel for the appellant submits that during pendency of the present appeal, the respondents / defendants are trying to change the nature of the suit property. He submits that such action would cause irreparable loss to the appellant. In support of his submissions, he has placed photographs of the suit property on record and has also relied on the judgment of the Hon'ble Apex Court in the case of Maharwal Khewaji Trust (Regd.) vs. Baldev Dass (2004) 8 SCC 488 , wherein the Hon'ble Apex Court held that unless and until case of irreparable loss or damage is made out by party to the suit, the Court should not permit the nature of the property to be changed, which also includes alienation or transfer of the property.
7. The respondents have filed their reply to the application, wherein it has mainly been contended that they are not raising any construction on the suit property. It has also been stated that even if any construction is raised, the same Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 06-04-2026 16:53:00 3 SA-1228-2018 would not cause any irreparable loss to the appellant as in case the appellant succeeds in the appeal, he would get the land along with the construction raised by the respondents.
8. Learned counsel for the respondents while opposing the application further submits that in application under Order XXXIX Rule (1) and (2) of the CPC, three ingredients i.e. prima facie case, irreparable loss and balance of convenience are required to be considered. In the present case, all three ingredients are in favour of the respondents / defendants. He further submits that in fact perusal of the plaint would show that the relief of permanent injunction was not even sought. As such, in absence of main relief of temporary injunction cannot be granted to the appellant.
9. Heard learned counsel for the parties and perused the record.
10. Learned counsel for the respondents has raised preliminary objection regarding the maintainability of this application filed under Order XXXIX Rule 1 and 2 of the CPC on the ground that the relief of permanent injunction was not sought in the plaint. As such, in absence of the main relief for permanent injunction, no relief for temporary injunction can be granted.
10.1 To better appreciate this submission of the learned counsel for the appellant, the provisions of Order XXXIX Rule 1 and 2 of the CPC including the M.P Amendment are reproduced below :
"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, Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 06-04-2026 16:53:00 4 SA-1228-2018
(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.
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.
"Madhya Pradesh. - In Order XXXIX, in Rule 2, in Sub-rule (2), insert the following proviso, namely-
"Provided that no such injunction shall be granted-
(a) where no perpetual injunction could be granted in view of the provisions of Section 38 and Section 41 of the Specific Relief Act, 1963 (47 of 1963); or
(b) to stay the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from, any person appointed to public service and post in connection with the affairs of the State including any employee of any company or corporation owned or controlled by the State Government; or
(c) to stay any disciplinary proceeding, pending or intended, or the effect of any adverse entry against any person appointed to public service and post in connection with the affairs of the State, including any employee of the company owned or controlled by the State Government; or
(d) to restrain any election; or Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 06-04-2026 16:53:00 5 SA-1228-2018
(e) to restrain any auction intended to be made, or to restrain the effect of any auction made by the Government; or to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished; and any order for injunction granted in contravention of these provisions shall be void."
10.2 A perusal of the above-quoted provisions would show that Order XXXIX of the CPC, which deals with temporary injunctions has two rules for grant of temporary injunction: Rule 1 and Rule 2. The M.P. Amendment to Rule 2 provides that under certain circumstances as detailed in clause (a) to (e), no temporary injunction can be granted.
10.3 Here it has to be kept in mind that the proviso has been inserted only to sub-rule 2 and not to rule 1.
10.4 Clause (a) provides the circumstances in which temporary injunction shall not be granted, where no permanent injunction could be granted in view of the provisions of Sections 38 and 41 of the Specific Relief Act, 1963. The purport of the provision is that if the grant of permanent injunction is not possible due to the restrictions put by Sections 38 and 41 of the Act, then temporary injunction cannot be granted.
10.5 It is thus clear that for Sub-rule (1), there is no impediment at all in granting temporary injunction even when no permanent injection is sought in the suit. However, Sub-rule (2), in its proviso, provides specific circumstances restricting the grant of temporary injunction. As such, there is no absolute proposition of law that in all cases where permanent injunction is not sought, temporary injunction cannot be granted.
10.6 To paraphrase, the intention of the provision appears to be that there is no embargo under Rule 1, it is only on the satisfaction of existence of three conditions, Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 06-04-2026 16:53:00 6 SA-1228-2018 namely, prima facie case, balance of convenience and irreparable loss that the relief of temporary injunction can be granted even when no relief of permanent injunction is sought. What the court is in fact, required to consider is that whether the property is being 'wasted', 'damaged', 'alienated', 'wrongfully sold', 'being threatened to remove or dispose of with a view to defraud creditors', 'being threatened to dispossess' or 'otherwise cause injury' .
10.7 Even if we consider the provisions of rule (2) then also it is not the case that temporary injunction cannot be granted in every instance where permanent injunction is not sought in view of the M.P. Amendment, under which the proviso was inserted, rather, there are limited circumstances under which embargo has been put that are enumerated in clause (a) to (e) of the proviso to rule (2).
10.8 The Karnataka High Court in the case of Kemparasaiah vs. Rajasetty in 1987 SCC OnLine Kar 166 has held in para 13 as under :
"13. Sri Ravivarma Kumar, then, referred me to Madan Mohan v. Revti Prasad [AIR 1977 Rajasthan 191.] which reads as :
"The amendment of Order 39 Rule 1 by the Act of 104 of 1976 has been made for the purpose of including within the purview of the provisions of Order 39 Rule 1 C.P.C. such suits where the defendant threatens to dispossess the plaintiff or otherwise cause any injury to the plaintiff in relation to any property in dispute in such suits. It appears that the legislature felt that such a suit should also be covered by the provisions of Order 39 Rule 1 C.P.C. and by the inclusion of Clause (c) in Order 39 Rule 1 C.P.C., maintenance of status quo in respect of possession of immovable property could also be one of the circumstances in which a civil Court may be entitled to issue a temporary injunction under that provision. Even before the amendment was introduced a temporary injunction for maintaining status quo relating to possession of immovable property could have been issued in a proper case although not under the provisions of Order 39 Rules 1 and 2 C.P.C., but under the inherent powers of the Court under Section 151 C.P.C."
Therefore, in view of the said Rajasthan ruling [AIR 1977 Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 06-04-2026 16:53:00 7 SA-1228-2018 Rajasthan 191.] and the view expressed by the Supreme Court in AIR 1962 SC 527 [AIR 1962 SC 527.] and in view of the clear amendment introduced by Rule 1(c) of Order 39, it becomes crystal clear that even though no relief of permanent injunction is sought for in the suit, still the Court has got jurisdiction to grant the temporary injunction in order to maintain the status-quo between the parties and in aid of the final relief that might be granted in the suit.
10.9 The Rajasthan High Court in the case of Mahaveer Dass vs. Ganeshmal Jeevraj in 1990 SCC OnLine Raj 24 has held in para 5 as under :
"5. It is clear from the language of this rule that in any suit, if it is proved by an affidavit or otherwise that conditions a, b and c of r. 1 exist either jointly or severally, one can approach the Court for grant of T.I. These matters are of emergent nature and they are provided in the rules for meeting these emergent situations. If in a suit brought for eviction on account of non payment of arrears and personal necessity, a plea is taken that the condition of the shop which was existing at the time of the filing of the suit, is sought to be changed or materially altered by the other party then definitely it will taken some time to amend the suit and to seek a relief in that suit that the defendant be restrained from doing so but if no temporary injunction can be granted during the intervening period then it will certainly result in definite injustice. Therefore, it is not the intention of the law that unless a relief of permanent injunction is claimed in the suit, no T.I. can be granted. The intention of the rule is that if in any suit, these three conditions or any one of them as mentioned in clause (a), (b) and (c) of order 39 Rule 1 C.P.C. are existing then the Court is competent to grant a temporary injunction even though no relief of permanent injunction has been added in the suit and, therefore, to this extent, I cannot agreed with the submission of Mr. Gehlot that unless a relief of permanent injunction is added in the suit, no T.I. can be granted because in a suit where property in dispute is in danger of being wasted damaged or being alienated by any party or being wrongfully sold or if the defendant threatens or intends to remove or dispose of the property with a view to defrauding his creditors and where the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute, these conditions exist or came into existence the filing of the after suit, an application for grant of T.I. can be made and such an injunction can of course be considered and decided by the court."
10.10 This Court in the case of Smt. Ajra Habib vs. R.K. Gupta in 2001 SCC OnLine 330 held in paras 9 and 10 as under :
"9. Order 39, Rule 1, CPC relevant for the present Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 06-04-2026 16:53:00 "9. Order 39, Rule8 1, CPC relevant for the present SA-1228-2018 purposes provides that where in a suit it is proved 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 pre-venting 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. These words have been consistently interpreted as authorising the Court to grant a mandatory injunction on an interlocutory application if it is considered essential in the interest of justice. By such interim mandatory injunction the Court can restore the status-quo existing on the date of the suit in an appropriate case. Such a power can be exercised in cases of extreme hardship or compelling circumstances depending upon the facts of the case.
10. Even in the absence of the specific prayer in the plaint for mandatory injunction the Court has the power to issue such injunction in suitable cases. That power is derived from Order 7, Rule 7, CPC which provides :
".... and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for". The Court must look at the substance and not mere form. Technicality should not triumph over the substance. The Court can always mould the relief in view of he subsequent developments. The Court has inherent power to grant either general relief or other relief which appears to it to be legitimate and proper in any case even though such reliefs have not been specifically asked for. The Court can always grant such relief as is available on the facts, even if no specific prayer for such relief is made in the plaint."
10.11 This Court in the case of Kanhaiyalal vs. Manohar and Others in M.A. No.3432/2024 vide order dated 01.07.2025 has observed in para 12 as under
:
"12. As regards the contention of the learned counsel for the appellant that a temporary injunction cannot be granted to respondents No.1 and 2 because they did not pray for a permanent injunction in their plaint, it must be considered that there is no such straight-jacket law requiring that temporary injunction Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 06-04-2026 16:53:00 9 SA-1228-2018 can only be granted when a plaintiffs have prayed for permanent injunction. This is a case involving the specific relief of the execution of an agreement to sale. In appropriate circumstances, the relief of a temporary injunction can always be granted. Temporary injunction is granted in the aid of the final relief. The provisions of Order XXXIX Rule 1 and 2 of CPC themselves provide that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind relief can also be granted as a temporary measure. Therefore, the submission of the appellant that a temporary injunction cannot be granted in the absence of prayer for permanent injunction holds no water."
11. It is thus clear that there is no such absolute proposition of law which entails that in absence of relief of permanent injunction in the plaint, no relief for temporary injunction can be granted. As such, the preliminary objection of the learned counsel is hereby discarded.
12. As regards the submission of the learned counsel for the respondents/defendants that their is no irreparable loss to the appellant and in case he stands to win the cause, he will get constructed building along with the suit property and that loss will be caused to the respondents. In the considered view of this Court, the submissions made by learned counsel for the respondents are not sustainable for the simple reason that there is complete absence of any pleading about irreparable loss to the defendants in case they are not permitted to raise construction in their reply. It has also not been stated in the reply by the respondents / defendants that they are in urgent need to raise construction for any particular purpose.
13. As far as the question of construction is concerned, the Hon'ble Apex Court in the case of Maharwal Khwaji Trust (Supra) has held in no uncertain terms that ordinarily during pendency of case, the nature of the suit property should not be permitted to be changed. The Hon'ble Apex Court held in para 10 as under :
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10. Be that as it may, Mr Sachar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of the property by putting up construction as also by permitting the alienation of the property, whatever may be the conditions on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored.
14. In the present case, the respondents / defendants have not made out any such case to show that this is not case of ordinary course or that there exist extraordinary circumstances requiring urgent construction on the suit property. Thus, the nature of the suit property should not be permitted to be changed during pendency of the appeal.
15. As regards the contention of the learned counsel for the respondents that no prima facie case is made out, it is apparent from the two substantial questions of law framed by the Court while admitting the appeal that the first appellate Court granted the relief of permanent injunction, whereas in the counter-claim only the relief of mandatory injunction was sought and there was no prayer for permanent injunction. It is also apparent that the first appellate Court considered the issue relating to Section 165 of the Madhya Pradesh Land Revenue Code, though no such plea was raised by the respondents / defendants in their written statement.
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16. This Court on perusal of the entire written statement of the respondents / defendants has not found even a single averment regarding the provisions of Section 165 of the Madhya Pradesh Land Revenue Code or regarding the invalidity of the sale deeds in absence of permission under the said section. As such, when the issue itself was not raised in the pleadings and no evidence was led on the same, there was no question to decide the said issue. Even no issue was framed by the trial Court on this aspect. Thus, in the considered view of this Court, prima facie case is clearly made out.
17. Now, as regards irreparable loss, as considered above, the Hon'ble Apex Court has already held that ordinarily the nature of the suit property should not be permitted to be changed.
18. In the considered view of this Court, I.A. No.2821 of 2016 deserves to be allowed. As such, the same is allowed. The respondents / defendants are restrained from raising any construction on the suit property. They shall not any change the nature of the suit property in any manner and shall keep the suit property in the position as it stood on the date of the impugned judgment and decree.
19. The parties are further restrained from creating any third-party rights with respect to the suit property during the pendency of the appeal.
20. Accordingly, I.A. No.2821 of 2026 is disposed of.
(PAVAN KUMAR DWIVEDI) JUDGE Anushree Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 06-04-2026 16:53:00