JUDGMENT : MRIDUL KUMAR KALITA, J. [1] By this common judgment, this court proposes to dispose of the FAO No. 57 of 2024 as well as CRP(IO) No. 407 of 2024 as both are connected cases and arise out of the same matter between same parties. [2] Heard Mr. B. J. Mukherjee, learned counsel for the appellants/petitioners. Also heard Mr. A. R. Sikdar, learned counsel for the respondent Nos. 1 & 2. [3] This FAO under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 has been filed by the appellants, impugning Order dated 29.06.2024, passed by the Court of learned Civil Judge, Bongaigaon in Misc. (J) Case No. 27 of 2024 in connection with Title Suit No. 149 of 2023, whereby, the prayer for grant of temporary injunction in respect of Schedule – “B” land by the respondents/defendants under Order XXXIX Rule 1 & 2 of the Code of the Civil Procedure has been allowed. [4] The facts relevant for consideration of the instant appeal, in brief, are that the present appellants, as plaintiff, filed a suit before the Court of learned Civil Judge, Bongaigaon, which was registered as Title Suit No. 149 of 2023 praying for relief of declaration, cancellation of sale deed and for permanent injunction. It has been stated in the plaint that the present appellants had purchased a plot of land measuring 2 Kathas 10 Lechas from one Billal Hussain. The said Billal Hussain purchased the aforesaid land of 2 Kathas 10 Lechas out of the total land measuring 2 Bighas 2 Kathas 5 Lechas from one Atowar Rahman in the year 1992. It is further stated in the plaint that the said Atowar Rahman with his remaining three (3) brothers again sold the entire plot of land of 2 Bighas 2 Kathas 5 Lechas (including the plot of land which was sold previously by Atowar Rahman to the present appellants) in favour of the defendants. In the aforesaid suit, the plaintiffs have claimed for a decree of declaration to the effect that they are the owners and possessors of the plot of land measuring 2 Kathas 10 Lechas, which is more specifically described in Schedule –“A” of the said plaint. They have also prayed for cancellation of the sale deed by which the entire plot of land measuring 2 Bighas 2 Kathas 5 Lechas were subsequently sold to the defendants. They have also prayed for cancellation of the sale deed by which the entire plot of land measuring 2 Bighas 2 Kathas 5 Lechas were subsequently sold to the defendants. In the aforesaid title suit, the plaintiffs have also prayed for a relief of permanent injunction by restraining the defendants from dispossessing them from Schedule –“A” plot of land measuring 2 Kathas 10 Lechas. [5] In the aforesaid suit, the present respondents had filed an application under Order XXXIX Rule 1(a) of the Code of Civil Procedure, 1908, praying for grant of temporary injunction by restraining the present appellants/plaintiffs from dispossessing them from entire Schedule – “B” land of 2 Bighas 2 Kathas 5 Lessas and by the impugned Order dated 29.06.2024, the aforesaid temporary injunction was granted to the respondents/defendants. [6] Mr. B. J. Mukherjee, the learned counsel for the appellants has submitted that the impugned order, by which the temporary injunction was granted against the present appellants, who were the plaintiffs in the aforesaid title suit, is bad in law. He submits that the defendants in whose favour the temporary injunction was granted by the Trial Court by the impugned order had not filed any counter-claim, when the said injunction was granted. He further submits that the defendants as petitioners, in the aforesaid Misc (J) Case No. 27 of 2024, in which the temporary injunction was granted, had failed to show the presence of essential ingredients like prima facie case, balance of convenience and irreparable loss in their favour. However, in spite of that the Trial Court granted the temporary injunction to the respondents/defendants. He further submits that when the impugned order was passed, no prayer on behalf of the defendants was there before the Trial Court, praying for any permanent injunction in the said case, which was obvious as no counter-claim was filed by that time. [7] The learned counsel for the appellants further submits that when there is no prayer for grant of permanent injunction by a party, no relief of temporary injunction may be granted to the said party and he submits that grant of temporary injunction in absence of a prayer for permanent injunction by the party to whom such a relief has been granted, is bad in law. In support of his submission, he has cited a ruling of this Court in the case of “ Gadadhar Barman Vs. In support of his submission, he has cited a ruling of this Court in the case of “ Gadadhar Barman Vs. Ranendra Mohan Paul ” reported in “ 1998 (1) GLJ 22 . [8] The learned counsel for the appellants further submits that the trial court while considering the presence of essential ingredients for grant of temporary injunction has also failed to take into consideration that the defendants in their application under Order XXXIX Rule 1(a) have also stated that the shops over the schedule land are allegedly run by son and nephew of the defendants in the name and style of “Arzu Enterprise” and “Hasan Medical Stores” respectively. However, the son and nephew of the defendants were not made party in the connected suit. He submits that had there been any inconvenience or any cause of action for the grant of temporary injunction, it would have been at best in favour of the son and nephew of the defendants, who are not made party to the suit. [9] He further submits that on the basis of mere pleading in the application under Order XXXIX Rule 1 & 2 without there being any documents on record or any other evidence to substantiate the claim of the defendants that there are two (2) shops over the Schedule – “B” property, the trial court granted the temporary injunction in favour of the respondents/defendants, which according to learned counsel for the appellants was a wrong approach. He, further, submits that even the documents which are produced by the respondents in the instant appeal, i.e. the trade licenses in respect of the shops named “Arzu Enterprise” and “Hasan Medical Stores” shows that the said licenses were issued by 53 No. Titapani Gaon Panchayat, Chenimari of Barpeta district in favour of one Rezaul Karim and another trade license is issued by Rangapani Gaon Panchayat, Bongaigaon. He submits that when the suit property is situated in Bongaigaon district, production of trade license in respect of the shops from the authorities of Barpeta district is not sufficient to justify the grant of temporary injunction to the defendants, who had not filed any counter-claim in the case. He further submits that the trade licenses produced by the respondents in this appeal were not produced before the Trial Court at the time when the temporary injunction was granted. He further submits that the trade licenses produced by the respondents in this appeal were not produced before the Trial Court at the time when the temporary injunction was granted. He also submits that even if the trade licenses are taken into consideration, same were issued in the name of persons, who are not resident of Bongaigaon district, whereas, the appellant is a resident of Bongaigaon district, therefore, the balance of convenience ought to have been considered in favour of the present appellants in not granting the temporary injunction prayed by the respondents. He also submits that the Trial Court also erred in granting the temporary injunction in respect of entire Schedule- “B” land, which includes the land described in Schedule- “A” of the plaint, over which the appellants have their possession. [10] On the other hand, Mr. A. R. Sikdar, the learned counsel for the respondents has submitted that though at the time when the impugned order was passed no counter-claim was filed by the present respondents in the Title Suit No. 149 of 2023. However, later on, on 08.04.2025, the defendants/present respondents had filed counter-claim in the aforesaid suit seeking relief of declaration of their right, title, interest over the Schedule – “X” land mentioned in the counter-claim. Another relief of declaration to the effect that the proforma defendant namely, Billal Hussain has no right to sale the land described in Schedule – “Y” of the counter-claim by executing sale deed No. 2134 dated 04.10.2023 in favour of the present appellants and accordingly also prayed for cancellation of the said sale deed. He submits that the present defendants in their counter-claim have also prayed for grant of permanent injunction against the plaintiffs from obstructing the defendants from running their shops over the “Y” Schedule land which correspond to Schedule – “A” land of the plaint. [11] The learned counsel for the respondents further submits that though, at the time when the temporary injunction was granted, no counter-claim was filed by the present respondents in the aforesaid suit. However, there is no bar in law to grant temporary injunction to a defendant even when no counter-claim has been filed by him. [11] The learned counsel for the respondents further submits that though, at the time when the temporary injunction was granted, no counter-claim was filed by the present respondents in the aforesaid suit. However, there is no bar in law to grant temporary injunction to a defendant even when no counter-claim has been filed by him. He submits that if the relief claimed by the defendant arise out of the plaintiff’s cause of action or is incidental to it, then the temporary injunction may be granted to such a defendant even in the absence of a counter-claim by such a defendant. In support of his submission, he has cited the ruling of the Karnataka High Court in case of Suganda Bai Vs. Sulu Bai & Ors. (supra). [12] He submits that the schedule land over which the temporary injunction has been granted was purchased bythe defendants in the year 1994 from Billal Hussain and Siddique Hussain and Atowar Rahman by executing a registered deed of sale bearing No. 2306 dated 08.09.1994. He submits that the land over which the right, title and interest is claimed by the present appellants is claimed to have been purchased by them in the year 2023, when their vendor did not have any such right to sale the said land, therefore, he submits that even prior to the filing of the Title Suit No. 149 of 2023, the mutation in respect of the schedule land of the appellants was cancelled by the revenue authorities and the appellants have not preferred any appeal against the said order, neither they have mentioned that fact in the their plaint. He, therefore, submits that the appeal filed by the present appellants under Order XLIII Rule 1(r) is liable to be dismissed. [13] I have considered the submissions made by the learned counsel for the both sides and have gone through the materials available on record. I have also gone through the rulings cited by them. [14] The main contention of the appellants in this appeal is that the trial court had erred in granting temporary injunction to the defendants even though no counter-claim was filed by them in the Title Suit No. 149/2023 at the time when the relief of temporary injunction was granted to them. [14] The main contention of the appellants in this appeal is that the trial court had erred in granting temporary injunction to the defendants even though no counter-claim was filed by them in the Title Suit No. 149/2023 at the time when the relief of temporary injunction was granted to them. [15] On a bare perusal of the provisions contained in Order 39, Rule 1 of the Code of Civil Procedure, 1908, it appears that under Order 39 Rule 1(b) and (c) of the Code of Civil Procedure, 1908 the temporary injunction may be granted only against the defendants. However, no such embargo is there in Order 39 Rule 1(a) of the Code of Civil Procedure, 1908. Under the said provision, if the property in dispute in a suit is in danger of being wasted, damage or alienated by any party to the suit the temporary injunction may be granted. The phrase “any party” used in Order 39 Rule 1 (a) of the Code of Civil Procedure, 1908 implies that the relief of temporary injunction may be granted even against the plaintiff if the conditions mentioned in Order 39 Rule 1(a) of the Code of Civil Procedure, 1908 are fulfilled. [16] Moreover, as regards the question as to whether a temporary injunction may be granted in favour of the defendants without any counter-claim by them or not has been considered by the trial court in the impugned judgment relying on the decision of the High Court of Karnataka in the case of Suganda Bai Vs. Sulu Bai AndOthers (supra). In the aforesaid case, the High Court of Karnataka has observed as follows: - “3. Now the principles, under which a defendant may seek and obtain an order of temporary injunction against the plaintiff, are stated in Collison v. Warren, (1901) 1 Ch 812 where Buckley, J., after referring to a number of earlier decisions of the English Courts, quoted Lopes, LJ, in (1824) 2 Ch 541 at p. 545:-- "The question is this -- whether the defendant can move for an injunction against the plaintiff without filing a counter-claim or issuing a writ in a cross- action. In my opinion, he can in some cases, but only in cases where the defendant's claim to relief arises out of the plaintiffs cause of action, or is incidental to it." Buckley, J., also referred to the decision of Davey, L.J., in the same case wherein it is stated thus:-- "In my opinion, it must be relating to or arising out of the relief sought in the action which is before the Court, and that any other injunction cannot properly be granted in the action." The principles stated in the above decision have been followed by this Court and it is only in cases where the defendants' claim to relief arises out of the plaintiffs cause of action or is incidental to it that he can ask for a temporary injunction against the plaintiff. “ [17] This court agrees with the observations made by the High Court of Karnataka in the aforesaid case that where the defendants claimed to relief arises out of the plaintiff’s cause of action or is incidental to it, a temporary injunction under Order 39, Rule 1 (a) of the Code of Civil Procedure, 1908 may be granted to such a defendant even in absence of any counter-claim by such a defendant. Moreover, in the instant case, the circumstances have now changed, as the defendants have also filed counter-claim in the aforesaid title suit. [18] In the instant case, the trial court came to the finding that the Schedule-“B” land over which the temporary injunction was granted by the impugned order is also the subject-matter in the plaint filed by the present appellants/plaintiffs and hence, it arises out of plaintiff’s cause of action and is incidental thereto. This court does not find any infirmity in the aforesaid observation of the trial court. [19] On perusal of the impugned order, it appears that the trial court has discussed the reasons, as to why it found necessary for grant of temporary injunction in favour of the defendants. It also discussed the three golden principles, i.e., prima facie case, balance of convenience and irreparable loss before granting the relief of such temporary injunction. [19] On perusal of the impugned order, it appears that the trial court has discussed the reasons, as to why it found necessary for grant of temporary injunction in favour of the defendants. It also discussed the three golden principles, i.e., prima facie case, balance of convenience and irreparable loss before granting the relief of such temporary injunction. Since, grant of temporary injunction during the pendency of the title suit, is a discretionary relief and unless it is shown that the said discretion has been exercised arbitrarily or perversely, the appellate court would not interfere in exercise of such a discretion by the trial court. [20] As regards the question as to whose claim of purchase of the suit land will ultimately be found to be sustainable, same is the subject-matter of the pending suit and it has to be decided after conclusion of the trial, as rightly observed by the trial court. However, as the trial court arrived at a finding on the basis of materials available before it that the defendants have constructed two shop rooms in the north eastern portion of the suit land, where, the son and nephew of the defendants are running stationary shop and one medicine shop respectively, this court finds no arbitrariness or perversity in grant of the temporary injunction against the plaintiffs by directing them not to obstruct the running of business in the said shop rooms, situated over Schedule-“B” land, during the pendency of the title suit. [21] Even though, the possibility of this court arriving at a different conclusion from that of the trial court on the basis of same materials cannot be ruled out. However, merely because this court may arrive at a different finding on the basis of same materials which were considered by the trial court while granting the temporary injunction may not, in itself, be a ground for interfering with the impugned order, which was passed by the trial court, in exercise of discretion under Order 39, Rule 1(a) of the Code of Civil Procedure, 1908. [22] For the discussions made and reasons stated in the foregoing paragraphs, this court is of the considered opinion that the ends of justice would be served, if the temporary injunction granted by the impugned order is continued till the rival contentions about claim of the rival parties over the suit land is considered and finally decided in the trial by the trial court. Hence, the impugned order is not liable to be interfered with at this stage. Accordingly, the FAO No. 57 of 2024 is hereby dismissed. [23] As regards, CRP(IO) 407 of 2024 is concerned, same was registered on filing of an application under Article 227 of the Constitution of India, by thesame persons, who are the appellants in FAO No. 57/2024. In the said CRP(IO), the petitioners have impugned the order dated 24.09.2024, passed by the Court of learned Civil Judge (Senior Division), Bongaigaon, in Misc.(J) No. 101/2024. By the said order, the trial court allowed the present respondents to take aid of police in implementing the order of temporary injunction granted, on 29.06.2024, in Misc.(J) Case No. 27/2024. The trial court has relied upon the facts pleaded by the present respondents, in their application seeking police help, which is supported by an affidavit. [24] In the foregoing paragraphs of this judgment, this court has discussed the rival contentions of the learned counsel for respective parties and have come to the conclusion that the temporary injunction granted by the order, dated 29.06.2024, in Misc.(J) Case No. 27/2024, is required to be continued till the rival claims of the parties over the suit land is finally decided in the pending title suit. Hence, this court finds no infirmity in the order dated 24.09.2024, passed by the Court of learned Civil Judge (Senior Division), Bongaigaon, in Misc.(J) No. 101/2024 granting police aid for implementation of the order of temporary injunction when the violation of the same is alleged and same is supported by an affidavit. As such, this court finds no material to interfere with the said order. [25] In view of the above discussions, the CRP(IO) No. 407/2024 as well as the FAO No. 57 of 2024 are hereby dismissed.