CMA-1542/2009 - M/S A.G. Kureshi Marbels Mines Makarana(Regd. Firm) Vs. Parwati & Ors. Judgment Dt.11.12.09 1/3 S.B. CIVIL MISC. APPEAL NO.1542/2009 M/S A.G. Kureshi Marbels Mines Makarana (Regd. Firm) Vs. Parwati & Ors. Date of order : 11th December, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. J.R. Patel for the appellant. ------- 1. Heard learned counsel. 2. The petitioner-plaintiff has approached this Court by way of present appeal against the order dated 24th October, 2009 whereby in suit for injunction filed by the plaintiff-petitioner, the defendant filed a counter claim and also filed an application under Section 39 Rule 1 and 2 C.P.C. seeking temporary injunction in the mine No.199 in question. The learned trial court by the impugned order has directed the plaintiffs (defendants in the said counter claim) to not to alienate the suit property namely mining lease No.199 having area 200 ft. x 100 ft. situated in Makarana. 3. Learned counsel for the petitioner-plaintiff submitted relying on the decision of this Court in case of Prem Chand Vs. Manak Chand & Ors. - AIR 1997 Raj. 198 that the relief which is not claimed in the main suit itself namely against the transfer of suit CMA-1542/2009 - M/S A.G. Kureshi Marbels Mines Makarana(Regd. Firm) Vs. Parwati & Ors. Judgment Dt.11.12.09 2/3 property, the same cannot be granted by the court below in the form of temporary injunction. 4. He also relied upon the decision of the Hon'ble Allahabad High Court in the case of Dilip Kumar Vs. Special Judge, Barabanki & Ors. - AIR 1992 Allahabad 167 in which the learned Single Judge of Allahabad High Court held that “A temporary injunction may be issued by the Court in the exercise of its inherent jurisdiction under S.151 C.P.C. But the jurisdiction to issue temporary injunction is also a limited one. The power to grant temporary injunction has been conferred in aid of or as ancillary to the final relief that may be granted. If the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly, if ever, be granted.” 5. Having heard learned counsel and in view of the reasons given in the impugned order, this Court is satisfied that directing the plaintiff (defendants in the said counter claim) not to alienate the suit property is in the aid or ancillary to the main relief claimed in the counter claim namely seeking injunction against not to interfere in the possession of the defendant (plaintiff for the counter claim), this order cannot be said to be a relief which has been granted even though there is no prayer to this effect in the main relief claimed in CMA-1542/2009 - M/S A.G. Kureshi Marbels Mines Makarana(Regd. Firm) Vs. Parwati & Ors. Judgment Dt.11.12.09 3/3 the counter claim. Such an order is intended to protect the suit property and not to allow a third party right to be created during the pendency of the litigation between the parties, therefore, such order cannot be faulted much less interferes by this Court. 6. The appeal being devoid of merit is hereby dismissed. Copy of this judgment be sent to opposite parties. [ DR. VINEET KOTHARI ], J. item No.45 babulal/