In a suit filed by the plaintiffs/ respondents, inter alia, against the appellant for the administration and possession through partition of the properties mentioned in the plaint, an application was filed for grant of temporary injunction restraining the appellant from alienating the suit property. The learned trial Court granted the relief vide order dated 6-2-1995.
2. Learned counsel for the appellant contends with reference to the judgment in the case of ,Marghub Siddiqi v. Hamid Ahmad Khan and others (1974 SCM R 519) that since the relief of permanent injunction was not claimed in the suit, the temporary injunction could not have been issued. No one has turned up for the respondents.
3. I have gone through the copies of the records. The parties in this case are the sons and daughters of one Abdul Haq who was admittedly owner of the property but the petitioner who happens to be the only brother of his eight sisters claims that his father had gifted away the property to him. This fact was denied, Now it is true that relief of permanent injunction has not been prayed for, yet I find that this is a case which is covered by rule 1 of Order XXXIX, C.P.C. Now unlike rule 2, rule 1 of the said Order XXXIX, C.P.C. does not lay down a condition that the suit itself should be for an injunction. In my humble opinion in the said case of Marghub Siddiqi relied upon by the learned counsel the suit pertained to the enforcement of the terms of service and was covered by rule 2 of Order XXXIX, C.P.C. I may refer here to the observation of his Lordship at Page 521 of the report in this behalf, whereby section 56 (f) of Specific Relief Act,.1877 was referred to which of course lays down the principle that an injunction cannot be granted to prevent breach of a contract the performance of which cannot specifically be enforced. Rule 2 of Order XXXIX, C.P.C. specifically refers to a suit for restraining the defendants from committing breach of a contract. On the other hand, rule 1 provides for issuance of a temporary injunction on proof by affidavit that any property in dispute in a suit is in the danger of being alienated by any party to the suit. Nothing, therefore, turns ~ on the said contention of the learned counsel. No other point has been urged. This F.A.O is accordingly dismissed leaving the parties to bear their own cost.