ORDER
N.K. Mehrotra, J.
1. This is a revision under Section 115, C.P.C, against the order dated 22-8-2001 passed by the Civil Judge (Senior Division), Mohanlalganj, Lucknow issuing notice on injunction application filed by the applicants in the Regular Suit No. 144 of 2001 (Smt. Urmila Devi and Ors. v. Nagar Nigam, Lucknow) by which the learned Civil Judge has found that there is no justification for granting an ex parte ad interim injunction in favour of the plaintiff and has directed to issue notice fixing 7-9-2001 for disposal of application No. 6-C for ad-interim injunction.
3. The case of the plaintiffs is that the plaintiff-revisionists are the owners in possession of the premises No. 292/4-A situated at Tulsidas Marg, known as Victoria Street, Lucknow since last over six decades. In a portion of the said premises, the revisionists reside while in a portion thereof, they are running an oil mill under the name and style of 'Narain Oil Mill' since the year 1945. The said firm of the revisionists was regularly assessed in the Sales Tax Department. It was having fire insurance from Phoenix Assurance Co. Ltd. and it was having a telephone number 25105. In support of the said contention the revisionists have filed papers as annexures to the affidavit filed in support of the stay application. It has also been stated on oath that applicant No. 1 who is aged about 75 years, is living in the premises in question ever since her marriage and the applicants Nos. 2, 3 and 4 are living in the premises in question from their very childhood. It has been stated that on 18-8-2001 certain officials/employees of the Lucknow Nagar Nigam came in a truck of Lucknow Nagar Nigam and asked the applicants to vacate a portion of the factory premise and servant quarters built on plot of the land measuring about 3500 sq. fts. on the eastern side and alleged that the said part of land which is in possession of the applicants, belongs to Lucknow Nagar Nigam. It has further been stated that those persons had asked the applicants to remove their effects from the part of the premises within a period of three days, failing which they had threatened to demolish it by force. Therefore a suit for permanent injunction was filed by the applicant in the trial Court and alongwith the suit an application for ad interim Injunction under Order 39, Rule 1 and 2 read with Section 151, C.P.C. supported by an affidavit of Kailash Chandra Agarwal was filed. It was also pleaded by the applicant that Lucknow Nagar Nigam is not vested with the authority or Jurisdiction to resort to the provisions of Section 26-A(1)(2) of the U.P. Urban Planning and Development Act, 1973. Since Nagar Nigam is governed by the provisions of Nagar Mahapalika Adhiniyam and it is not vested with the authority or jurisdiction to take recourse to dispossess the applicant from their properties. It has been pleadedby the plaintiffs/revisionists that the powers under Section 26-A are vested with the authority under U.P. Urban Planning and Development Act, 1993 and not the authority under the Nagar Mahapalika Adhiniyam. It has further been pleaded that the property in question is situated under the development area under the said Act and as such the authority means the Development Authority under Section 4 for that area.
4. After hearing the parties, I am of the opinion that from the documents filed by the plaintiffs/revisionists and the unrebutted affidavit of Kailash Chandra Agrawal, a prima facie case in favour of the applicants/revisionists for grant of Interim injunction is made out. Further since they are already in possession, the balance of convenience also lies in their favour for grant of injunction and in case injunction is not granted, they are bound to suffer irreparable loss and injury. Thus, all the three ingredients for grant of injunction to the plaintiffs exist. In support of their case, the plaintiff-revisionists have also relied upon the Apex Court's decision in the case of Krishna Ram Mahale v. Smt. Shobha Venkat Rao, reported in AIR 1989 SC 2097 wherein the Supreme Court have held that it is well settled in this country that where a person is in settled possession of the property, even on assumption that he has no right to remain in property, he cannot be dispossessed by the owner of the property except by recourse of law.
5. The learned trial Court while refusing to grant ex parte injunction order failed to consider and appreciate the relevant facts and law on the point. Since all the three Ingredience for grant of injunction i.e. prima facie case, balance of convenience and irreparable loss and injury exists in favour of the plaintiffs, they ought to have been granted the interim injunction so as to protect their interest.
6. The learned counsel for the opposite party has argued that this revision is not legally maintainable because against an order passed under Rules 1 and 2 of Order 39, C.P.C., there is a provision of appeal under Order 43, Rule 1(r) against an order under Rule 1 and 2 of Order 39, C.P.C. Section 115(2) provides that :
'The High Court shall not under this section, vary or reverse any decree or orderagainst which an appeal lies either to the High Court or to any Court subordinate thereto.'
7. Now the question to be decided is whether the impugned order is an order under Rule 1 or 2 of Order 39, C.P.C. The relevant portion of the last paragraph of the impugned order is as follows :--
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8. The aforesaid operative portion of the impugned order goes to show that the learned trial Court has passed this order under Order 39, Rule 3, C.P.C. Order 39, Rule 3, C.P.C; is as follows :
'3. Before granting injunction. Court to direct notice to opposite party.-- The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party :
Provided that, where it is proposed togrant an injunction without giving notice ofthe application to the opposite party, theCourt shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and requirethe applicant--
(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit statingthat the copies aforesaid have been so delivered or sent.'
9. In Khushi Lal v. Gore Lal reported in AIR 1986 Madh Pra 47, the trial Court did not think it proper to issue ex parte injunction without hearing the opposite party and held that grant of ex parte injunction willnot be justified without notice. In revision the High Court of M.P. at Gwalior held as follows (para 7) :
'What the trial Court did in this case is that it neither passed an ex parte injunction in favour of the plaintiff nor refused to grant it. The trial Court could not decide from the material supplied by the plaintiff as to whether the parties are in joint possession of the suit land or otherwise. The trial Court therefore felt that without notice to the defendants it would not be just and proper to grant an ex parte temporary injunction. Therefore, the trial Court chose to proceed under Rule 3 of Order 39 of the Code. Rule 3 reads;
The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party.
It is also required in the provision of this rule that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay.'
10. In Lakhai v. Ram Niwas. AIR 1987 All 345, it was held that (para 7) :
'The mere order issuing notice on an application for grant of an injunction clearly comes under the provisions of Rule 3 of Order 39. An order under Rule 3 of Order 39 is not appealable under Order 43, Rule 1(r).'
11. In Arya Pratinidhi Sabha v. Man Mohan Tiwari, reported in (1993) 2 LCD 595 relying on the case of H. Bevis and Company v. Ram Behari, AIR 1951 All 8 it was held by Division Bench that against an order refusing to grant an ex parte injunction a revision is maintainable and this Court has also held that such an order is an order under Order 39, Rule 3, C.P.C. Similarly, in Sukh Vir Singh v. IIIrd Addl. District Judge, reported in (2000) 1 JCLR 423 (All) it was held that the order for issuing notice under Rule 3 of Order 39 without grant of ad interim injunction is revisable and not appealable. In this case also the impugned order of issuing notice was treated to be an order under R. 3 of Order 39, C.P.C.
12. Therefore, in view of the legal proposition referred to above, the impugned order is an order under Rule 3 of Order 39 and no appeal lies against that order under Order 43, Rule 1(r) of the Code of Civil Procedure and since no appeal lies against this order, the bar of Section 115(2) is not applicable in the instant case.
13. Since the impugned order was passed prior to the amendment of Section 115, C.P.C. by the Amendment Act of 1999 with effect from 1-7-2002, the amended provisions has not been considered for deciding this revision. Therefore, the revision is liable to be allowed.
14. In result, the revision is allowed. The application for an ad-interirn injunction 6-C' is allowed with the observation that the possession of the revisionists over the Premises No. 292/4-A situated at Tulsi Das Marg previously known as Victoria Street, Lucknow shall not be disturbed except in due course of law during the pendency of the suit.