M.R. Shah, J.
1. Present Appeal from Order under Order 43 Rule 1 of the Code of Civil Procedure is filed by the appellants - original plaintiffs challenging the impugned order passed by the learned trail Court dated 22.05.2007 below Exh.5 in Special Civil Suit No. 337 of 2006 in dismissing the said application Exh.5 submitted by the plaintiff under Order XXXIX Rule 2 of the Code of Civil Procedure.
2. Appellants - original plaintiffs had filed Civil Suit No. 337 of 2006 in the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) under Section 6 of the Specific Relief Act for restoration of the possession of disputed plot / plots situated at Sterling City Township, Bopal, Taluka - Daskori, Ahmedabad (R). In the said suit the plaintiffs submitted application Exh.5 under Order XXXIX Rule 2 for interim injunction during the pendency of the suit restraining the defendants from putting up any construction on the aforesaid plots in question and restraining the defendants from transferring, alienating in any manner whatsoever block No. 181 and also restraining them from creating any charge over the said land. That the learned 5th Additional Senior Civil Judge, Ahmedabad (R) by impugned order dated 22.05.2007 dismissed the said application Exh.5. Being aggrieved and dissatisfied with the order passed below Exh.5 in Special Civil Suit No. 337 of 2006 i.e. suit for restoration of the possession of the lands in question under Section 6 of the Specific Relief Act, the appellants have preferred present Appeal from Order and Civil Application for interim relief therein.
3. Mr. A.J. Patel, learned Advocate has appeared on behalf of the appellants and Mr. S.N. Shelat, learned Senior Advocate has appeared with Mr. Jigar Patel, learned Advocate for respondent No. 4 and 5. Mr. D.V. Shah, learned Advocate has appeared for respondent No. 1. Mr. B.S. Patel, learned Advocate has appeared for respondent No. 3.
4. Mr. S.N. Shelat, learned Senior Advocate has raised preliminary objection with respect to maintainability of the present Appeal from Order. It is submitted by Mr. Shelat, learned Senior Advocate that in view of Sub-section (3) of Section 6 of the Specific Relief Act, an appeal against order / decree passed in proceedings under Section 6 of the Specific Relief Act would not be maintainable and therefore, present Appeal from Order arising out of order passed below Exh.5 in a suit under Section 6 of the Specific Relief Act would not be maintainable. Mr. Shelat, learned Senior Advocate has relied upon decision of the Orissa High Court in the case of Prasanna Kumar Singh v. Golak Chandra Madhual and Anr. reported in 1996 AICH 532 as well as decision of this Court in the case of Ramesh Devchand Pala v. Jayantkumar Gordhandas Madani and Ors. reported in : AIR1998Guj120 .
5. Mr. A.J. Patel, learned Advocate appearing on behalf of the appellants - original plaintiffs has submitted that bar under Section 6 of the Specific Relief Act would not be applicable to the facts of the present case as impugned order is passed in an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure and same cannot be said to be strictly an order under Section 6 of the Specific Relief Act. Therefore, considering Order XLIII Rule 1 of the Code of Civil Procedure against order below application under Order XXXIX Rule 1 and 2 Appeal from Order would be maintainable.
6. Heard the learned Advocates appearing on behalf of the respective parties.
7. It is to be noted that present suit has been instituted by the appellants - original plaintiffs under Section 6 of the Specific Relief Act for restoration of the possession. In the said suit the appellants prayed for interim injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure by submitting application Exh.5 which came to be dismissed. Therefore, it can be said to be order passed by the learned trial Court in a suit which is filed for relief under Section 6 of the Specific Relief Act. As per Sub-section (3) of Section 6 of the Specific Relief Act, no appeal shall lie from any order or decree passed in a suit instituted under Section 6, nor shall, any review of any such order or decree, be allowed. Thus what is required to be considered is an order passed in a suit instituted under Section 6 of the Specific Relief Act. It cannot be disputed that application Exh.5 may be under Order XXXIX Rule 1 and 2 but is submitted in a suit instituted under Section 6 of the Specific Relief Act. Therefore, order passed below Exh.5 impugned in the present Appeal from Order is an order in the suit instituted under Section 6 of the Specific Relief Act. Identical question came to be considered by the Orissa High Court in the case of Prassana Kumar Singh (supra). In the case before the Orissa High Court - Prassana Kumar Singh (supra), in a suit for restoration of possession under Section 6 of the Specific Relief Act, application for interim injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure was submitted which came to be dismissed, against which Appeal from Order under Order XLIII Rule 1 of the Code of Civil Procedure was filed. An objection was raised that Appeal from Order against the said order in application under Order XXXIX Rule 1 and 2 is not maintainable. Dealing with such a situation and controversy, Orissa High Court has observed and held as under:
5. For resolution of the controversy it is necessary to take a bird's eye view of the provision itself which reads as follows:
6. Suit by person disposed of immovable property -(1) if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recovery possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof
The provision contained in Sub-section (3) is absolute in terms. It rules out any appeal from any order or decree passed in a suit instituted under Section 6 of the Act and also rules out any review of any such order or decree. The question arises as to why such remedy has been denied.
6. The object of enactment of the Act is to protect possession. Several grounds have been suggested for this e.g. (i) to discourage people from taking law into their hands, however, good their title may be and thereby deriving any benefit (ii) to put an additional restraint upon illegal dispossession, by depriving the dispossessor of the privilege of proving a better title to the property in dispute; and (iii) to prevent the shifting of the burden of proof by illegal dispossession. The object is further to provide a special summary and speedy remedy for recovery of possession without establishing title, to person who, being whatever his title, in possession of immovable property, is illegally ousted there from without his will and consent otherwise than in the due course of law. The plain object is to discourage proceedings calculated to lead to serious breaches of peace and to provide against the person, who has taken the law into his own hands, deriving any benefit from the process. The Legislature has considered it advisable to do away with the opportunity, to powerful persons, of shifting, by a wrongful act, the burden of proof from their shoulders to these of persons less able to support it. The Court does not try question of title. It simply determines three questions of fact namely (a) who was formerly in possession and (b) whether he was dispossessed within six months from the date of the institution of the suit; and (c) whether he was dispossessed without his consent otherwise than in accordance with law. Section 6 affirms an important principle of substantive law. Disputed rights are to be decided by due process of law and not otherwise, and existing peaceful possession with be protected against disturbance without regard to the question of its origin. The only way to do this with effect is to restore the dispossessed holder, without prejudice to the ultimate rights of any adverse claimants, including the dispossessor himself. It provides a summary and speedy remedy through a medium of the Civil Court for the restoration of possession to a party dispossessed by another, leaving them to fight out the question of their respective titles if they are so advised. The remedy independent of the Act of the suit founded on a claim of possessory title is not excluded.
7. The question involved in the present case is whether the order refusing to accept the prayer in terms of Order 39, Rules 1 and 2 of the Code is encompassed by the expression 'order' appearing in Sub-section (3) of Section 6. The terms 'judgment', 'decree', 'decision', and 'order' are more or less cognate as applied in general proceedings and closely allied in meaning. The term 'order' is not inpregnantly used in a more restricted sense urban the word 'judgment'. The expression 'order' as has been defined in the Code in Section 2(14) reads as follows:
(14) 'Order' means the formal expression of any decision of a Civil Court which is not a decree'. It is generally understood to be a command, direction of decision of the Court or Judge on some intermediate point of issue in the case, but without finally disposing of the main issue or issued in the cause. Then it is merely interlocutory. But the terms is sometimes given a more extensive signification, even in legal controversies, and is occasionally used as a synonym of judgment or decree In the practice of Courts the term 'order' means a decision made during the progress of the case, either prior or subsequent to final judgment, settling some point of practice, or some question collateral to the main issue presented by the pleadings and necessary to be disposed of before such issue can be tried in the Court or necessary to be determined in carrying into execution the final judgment. Anderson's Law Dictionary defines it to be any direction of a Court, other than a judgment or decree, made in a cause. According to Surril, it is any direction in writing, granted by a Court or Judge, requiring or authorizing some act to be done. It means in terms o Section 2(14) of the Code the formal expression of any decision of a Civil Court which is not a decree. Every direction of a Court or Judge made or entered in writing, and not included in a judgment or decree, is denominated an order. The word 'order' has been given a special meaning in order to distinguish it from a decision under the Code. 'Order' as a noun can be said to be equivalent to or synonymous with decision. It is not a term of Article It has no fixed legal meeting, but generally is termed to be comprehensive enough to include every decision or order made under any statue.8. As indicated above, the prohibition of an appeal against any order or decree in the suit is absolute. There can be no quarrel over the proposition that the order to which the prohibition applies must have nexus with the subject-matter of dispute. In the case at hand, undisputedly the decision which was assailed in appeal was passed in adjudicating an application in terms of Order 39, Rule 1 and 2 of the Code. Whether the order is wrong or not is not the question, what is relevant and what has to be considered is whether it is an order passed in the suit instituted under Section 6 of the Act. The plain, simple and emphatic answer to the question is yes. However, the situation may be different where an order or decree is passed in a suit under Section 6; which has additional directions or prohibitions for example, a decree for possession and damages. Obviously the decree does not have only nexus with the suit itself, which has restricted operation in terms of Section 6. In such case the whole decree may be appealed against. But that is not the case here. The dispute relates to correctness of the order passed in respect of the application under Order 39 Rules 1 and 2 of the Code. The inevitable conclusion, therefore, is that the appeal was not maintainable and it has been rightly held to be so by the learned District Judge.
8. Even learned Single Judge of this Court in the case of Ramesh Devchand Pala (supra) has taken the similar view. In para 6, it is observed that appeal against an interim order granting injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure is not maintainable under Order XLIII Rule 1 and 2 of the Code of Civil Procedure where appeal was against the interim order passed in a Suit under Section 6 of the Specific Relief Act.
9. Considering above and direct decision on the point of the Orissa High Court, this Court is in complete agreement with the view taken by Orissa High Court in the aforesaid decision and it is held that against the order below Exh.5 under Order XXXIX Rule 1 and 2 in a suit instituted under Section 6 of the Specific Relief Act, no appeal / Appeal from Order shall lie. Under the circumstances, present Appeal from Order is not maintainable and therefore, same is dismissed as not maintainable. In view of dismissal of Appeal from Order, no order in Civil Application.