' The only question requiring determinations in this appeal is whether temporary injunction can be issued during the pendency of suit ih which a decree for permanent injunction is not prayed for.
2. On 11th April, 1989, a suit for possession through specific performance of agreement to sell dated 25th April, 1983 with respect to property No,202/A situate in Ferozepur Road, Lahore was instituted by Syed Mehboob All and others, appellants herein, against the respondents. Alongwith the suit, an application for grant of temporary injunction restraining the respondents from alienating the suit property during the pendency of suit was also filed. That application was dismissed by the trial Court without going into merits of the case on the sole ground that as the appellants have not claimed relief for permanent injunction in the plaint, the application for temporary injunction was not maintainable. In support of this finding, reliance was placed on Marghub Siddiqui v. Hamid Ahmad Khan and 2 others (1974 SCMR 519) and Aijaz Hussain Bhatti and another v. Haji Bagh All and 9 others (1985 CLC 261).
3. Mr. Hakam Qureshi, learned counsel for the appellants has contended that the view taken by the trial Court that in the absence of prayer for permanent injunction in the suit itself, no temporary injunction can be granted, is contrary to law. It was maintained that under Order 39 read with section 151 of C.P.C., the Court has the jurisdiction to pass an interim order in suits of all nature and applicability of these provisions is not confined to suits for permanent injunction only. Learned counsel for the respondents has also been heard.
4. As is well understood injunction is a judicial order by which a party is required to do certain act or is prohibited or restrained from doing some other acts. So, injunction can either be mandatory or preventive. According to section 52 of the Specific Relief Act, 1877, preventive relief in form of injunction is granted at the discretion of the Court and may either be temporary or perpetual.
Section 53 of the said Act provides that while temporary injunctions are to continue until specified time or until further orders of the Court, perpetual injunctions on the other hand are to continue in perpetuity. Another distinction between the two kinds of injunctions is that while permanent injunction can only be granted through a decree made at the conclusion of the hearing, temporary injunctions may be issued at any stage of suit. Grant of perpetual injunction is regulated by Chapter X of the Specific Relief Act, 1877 while section 53 of the said Act itself provides that the temporary injunctions are governed by Code of Civil Procedure.
5. So far as Civil Procedure Code is concerned, section 94, therefore, empowers the Court to grant temporary injunction, if it is so prescribed by the Civil Procedure Code. Order 39, Rules 1 and 2 of Civil Procedure Code enumerates the circumstances in which temporary injunctions may be granted by Court. These two rules read as under:--- Order 39, rule 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 defraud his creditors. ' 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 as the Court thinks fit, until the disposal of 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.
(3) In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release.
(4) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto."
6. On its plain reading Order 39, rule 1 applies to all suits and not necessarily to suit for permanent injunction. The use of word "any" in this rule is of significance as its user generally conveys, according to the well-established principles of interpretation the sense of all-embracing and without any limitation. In Stroud's Judicial Dicationary Fourth Edition at page 145, it has been stated that "any" is a word which excludes limtiation or qualification. According to Aiyer's Terms and Phrases 7th Edition at page 74, "any" is used for "all". The import of this word was considered by the Supreme Court of Pakistan in Bank of Bahawalpur v. Chief Settlement and Rehabilitation Commissioner PLD 1977 SC 164 wherein the dictum in The Queen v. Rowlands and others (8 QBD 1882 page 530) and Duck v. Bates (12 QBD 1884 page 79) was cited with approval. In these two cases, it was observed that word "any" is an expression of utmost generality removing all limitations and qualifications.
7. Viewed from this angle, there appears to be no good reason for holding that the Court has no power to grant temporary injunction in a suit which is not for permanent injunction. This conclusion is further fortified from a comparison of the language of rule 2 with rule 1, Order 39 of C.P.C. While rule 1 uses the expression "in any suit", Order 39, rule 2 provides for issuance of temporary injunction "in any suit for restraining the defendant" which obviously has reference to a suit for permanent injunction. It may also be pointed out in section 53 of the Specific Relief Act, 1877 also, there is no restriction that temporary injunction can be granted only in a suit for permanent injunction. The view taken by the trial Court that no temporary injunction can be issued in the suit for specific performance of agreement in the absence of prayer for permanent injunction in the plaint is not, therefore, sustainable.
8. The power to grant injunction in various kinds of suits has always been recognized and Courts have from times immemorial been issuing injunctions in suits for possession, recovery of money, redemption of mortgages in order to prevent any injury from being caused to the plaintiff during the pendency of the suit. It is not possible to refer to all cases where temporary injunctions have been issued in different kinds of suits but some precedents where temporary injunction was granted during the pendency of the suits for specific performance may be noted.
9. In Haji Allah Bakhsh v. Roshan Din 1991 CLC Headnote 255, my learned brother, Munir A. Sheikh, J, was pleased to observe that mere failure of the plaintiff to claim for relief of injunction in the main suit would not be a ground for refusal of the temporary injunction in all suits. The dispute in that case arose out of a suit for specific performance and my learned brother was pleased to grant temporary injunction, restraining the respondent from alienating the land in dispute during the pendency of that suit. I respectfully subscribe to the view taken by him. In Rustam All v. Ch. Mukhtar Ahmad Anwar 1987 MLD 394, my Warned brother, Manzoor Hussain Sial, J., was pleased to issue a similar injunction, prohibiting the respondents from alienating the suit property till the decision of the suit for specific performance. Some of the decisions in this respect are Fateh Muhammad v.
Muhammad Hanif and another PLD 1990 Lah. 82, Peron Din and another v. Tien Ying Lee and others 1987 MLD (Karachi) 2035 and Shama Enterprises (Pvt.) Ltd. v. Malik Ghulam Sarwar and others 1989 MLD (Karachi) 21.
10. Now the cases relied upon by the trial Court for holding that application for temporary injunction was not maintainable may be noticed. The dispute before the Supreme Court in Marghub Siddiqui's case 1974 SCMR 519 arose out of a suit for declaration in service matter. In that context, it was observed that as permannt injunction has not been prayed for, temporary injunction was not maintainable. Their Lordships did not lay down as a rule of universal application that in no suit where permanent injunction was not asked for in the plaint, temporary injunction cannot be issued.
As regards the other judgment namely Aijaz Hussain Bhatti and another v. Haji Bhagh All and 9 others 1985 CLC 261, it is to be seen that same learned Judge, KA. Ghani has taken different view in a subsequent case reported as Molasses Export Co. Ltd. v. Consolidated Sugar Mills Ltd. 1990 CLC 609 observing that failure of the plaintiff to pray for permanent injunction in suit for specific performance does not disentitle him to grant of temporaiy injunction.
11. Reference may also be made to another decision of this Court namely Arshad All and another v.
Abdul Rashid and 2 others PLD 1980 Lahore 382 wherein learned Judge, after noticing the decision of the Supreme Court in Marghub Sidiqui v. Hamid Ahmad Khan and others 1974 SCMR 519 was pleased to observe that even in suits not for permanent injunction, the Court can issue an order directing maintenance of status quo regarding nature and character of the suit property during the pendency of suit. Same view was taken in Mst. Tajbaro w/o Wahid Gui v. Gopi Chand Singh and others AIR 1938 Pesh. 67, Bantu v. Lehna and others AIR 1926 Lahore 523 and L.D. Meston School Society v. Kashi Nath Misra AIR 1951 Allahabad 558.
12. It is true that it was held in certain other cases that if temporary injunction is not prayed for in the plaint, temporary injunction cannot be granted but those are the cases where the plaintiff, despite being entitled to grant of further relief, had omitted to claim it, although it was not necessary for him to do so in order to effectuate his remedy. In other words, the relief prayed for in the plaint in those suits was not sufficient in itself to redress the grievance of the plaintiff and even if the suit was decreed, the plaintiff will have to file another suit. The true position stands explained in often-cited judgment of Division Bench of this Court in Shiromani Gurdawara Parbandhak Committee, Nankana Sahib v. Banta and others AIR 1926 Lahore 504 where it was observed that it was not hard and fast rules that the temporary injunction cannot be granted in a suit for declaration but such an injunction should not be issued where the plaintiff who is successful in a suit for declaration must bring another action for enforcing right which he seeks to keep undisturbed by such an injunction.
13. here is another aspect of the matter namely reliefs of injunctions and specific performance are species of same nature and injunction is generally considered to be ancillary and adjunct to that of specific performance. Fry in famous Treatise on Specific Performance, 6th Edition at page 538 has stated principle of law as thus:-- 1155 "The jurisdiction of the Court in injunction is often ancillary to that in specific performance for the purpose of preventing the defendant from making a use of some legal interest or right vested in him in a way inconsistent with the equity claimed by the plaintiff, or embarrassing the plaintiff by dealing with the property during the pendency of the action, or obstructing the performance of some act incidental to the execution of the contract. The Court will in many cases interfere and preserve property in status quo during the penedncy of a suit in which the rights to it are to be decided, and that without expressing, and often without having the means of forming any opinion as to such rights, (Per Lord Cottenham in Great Western Railway Co. v. Bringmingham and Oxford Junction Railway Co. (1).
1156 "In the class of cases now to be coniderd the injunction is, therefore, granted, upon interlocutory application and until the trial, on the plaintiff showing a prima facie case for specific performance. It is not necessary that it should be clear that the plaintiff will succeed at the trial, it is sufficient if there is ground for supposing that relief may be given. For on this application, the Court will not decide delicate points nor allow it to be resisted on points such as delay, which can only be decided at the trial."
14. It follows from the above decisions that a Court is not prohibited from issuing temporary injunction in suits in which a decree for permanent injunction is not prayed for.
' For the reasons aforesaid, this appeal is allowed; the impugned order --is set aside and the case is remanded to the trial Court for decision of the application for temporary injunction afresh. No order as to costs.