Jyotirmay Bhattacharya, J.
1. This application under Article 227 of the Constitution of India is directed against two orders being Order No. 1 dated 29th September, 2007 and Order No. 2 dated 1st October, 2007 both passed by the learned Additional District Judge at Barackpore in Misc. Appeal No. 86 of 2007.
2. The defendant/respondent in the said appeal is the petitioner before this Court.
3. The plaintiffs/opposite parties filed a suit for declaration of title and for injunction before the learned Trial Judge. In the said suit, the plaintiffs/opposite parties filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, inter alia, praying for temporary injunction.
4. Since the prayer for ad interim injunction of the plaintiffs/appellants/ opposite parties was rejected by the learned Trial Judge, the plaintiffs/opposite parties filed the aforesaid appeal before the learned Additional District Judge at Barackpore.
5. The said appeal which was registered as Misc. Appeal No. 86 of 2007 was admitted for hearing on 1st October, 2007 vide Order No. 2.
6. The learned Appeal Court, however, refused to grant any ad interim injunction as prayed for by the appellants/opposite parties herein in the said appeal by holding, inter alia, that grant of injunction as prayed for at this stage would ultimately result in giving final relief to the plaintiffs/appellants/opposite parties without giving any opportunity to the defendant/respondent/petitioner. The plaintiffs/appellants/opposite parties were, however, directed to serve notice upon the defendant/respondent/petitioner who was directed to show cause within seven days from the date of receipt of the notice as to why the plaintiffs' prayer for injunction shall not be allowed.
7. Thereafter, the suit was transferred for trial to the Original Side of this Court in pursuance of an order passed by learned Single Judge of this Court taking up interlocutory matters in the Original Side, on 16th January, 2008 under Clause 13 of the Letters Patent (1865).
8. In such context, the instant revisional application has been moved by the defendant/respondent/petitioner challenging the propriety of the order of admission of the appeal as well as the legality of continuation of the said appeal before the learned Appeal Court, after the transfer of the said suit to the Original Side of this Court in the manner as aforesaid.
9. Mr. Roy, learned Advocate, appearing for the petitioner, firstly submitted that refusal to grant ad interim injunction with the consequential direction for issuance of notice upon the defendant/respondent/petitioner is not appealable under Order 43 Rule 1(r) of the Code of Civil Procedure. According to Mr. Roy, such an order of refusal to grant ad interim injunction with consequential direction for service of notice upon the respondent, is essentially an order passed under Order 39 Rule 3 of the Code of Civil Procedure and not under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
10. Thus, Mr. Roy submitted that since an order passed under Order 39 Rule 3 is not appealable under Order 43 Rule 1(r) of the Code of Civil Procedure, the instant appeal which was filed by the plaintiffs/appellants/opposite parties hereinbefore the learned Appeal Court, is not maintainable.
11. In support of such submission, Mr. Roy relied upon various decisions of different High Courts which are as follows:
(i) Khusilal and Ors. v. Gorelal and Anr. reported in : AIR1986MP47 ,
(ii) Gajraj Singh v. Ramkumar and Ors. reported in AIR 1992 SC 316.
(iii) Lakhai v. Ram Niwas and Ors. reported in : AIR1987All345 and
(iv) Urmila Devi and Ors. v. Nagar Nigam, Lucknow reported in : AIR2003All158 .
12. In all those decisions, it was uniformly held by different High Courts that when the learned Trial Judge having not been satisfied with the materials, refused to pass an ex parte temporary injunction, but directed issue of notice to the defendant, such order essentially comes under Order 39 Rule 3 of the Code of Civil Procedure and thus is not appealable under Order 43 Rule 1(r) of the Code of Civil Procedure.
13. Relying upon the aforesaid decisions of the different High Courts, Mr. Roy prayed for deregistration of the said appeal as the same is not maintainable in law. Mr. Roy also prayed for setting aside of all the orders passed by the learned Appeal Court in the said appeal including the order of admission thereof.
14. Mr. Roy further submitted that even assuming that the appeal is maintainable and this Court ultimately holds as such in favour of the maintainability of the appeal, still then the said appeal cannot be continued further before the learned Appeal Court, as the learned Appeal Court loses its jurisdiction to try the said appeal after transfer of the suit from the Original Court at Sealdah to the Original Side of this Hon'ble Court.
15. According to Mr. Roy, since the suit has been transferred to the Original Side of this Court, it is only the appellate forum in the Original Side of this Court which can hear the said appeal on merit, if the appeal is ultimately held to be maintainable.
16. Mr. Roy lastly submitted that if his contention regarding maintainability of the said appeal is not accepted by this Court, then this Court may transfer the said appeal from the Court where it is presently pending to the appellate forum m the Original Side of this Court, by invoking the jurisdiction under Section 24 of the Civil Procedure Code.
17. Mr. Pal, learned Advocate, appearing for the opposite parties, supported the order of the learned Appeal Court by contending, inter alia, that refusal to grant interim injunction, is appealable under Order 43 Rule 1(r) of the Civil Procedure Code and as such, the appeal which was filed by his clients before the Appeal Court is very much maintainable in law.
18. Mr. Pal further submitted that the order of transfer of the suit from the Original Court at Sealdah to the Original Side of this Court, was passed after the admission of the said appeal and as such, the jurisdiction of the Appeal Court for admission of the appeal, cannot be questioned by the petitioner herein.
19. According to Mr. Pal, if the Appeal Court had the jurisdiction to admit the said appeal, the said Appeal Court has also the jurisdiction to dispose of the same even after the transfer the suit from the Original Court to the Original Side of this Hon'ble Court.
20. Let me now consider as to how far the learned Appeal Court was justified in entertaining the said appeal and further as to whether the learned Appeal Court is competent to hear the said appeal after the transfer of the suit from the Original Court to the Original Side of this Hon'ble Court.
21. Let me first of all deal with the question of maintainability of the appeal, as raised by Mr. Roy.
22. I have carefully considered the decisions the different High Courts which were relied upon by Mr. Roy in support contention that such an appeal which is directed against an order passed under Order 39 Rule 3 of the Code of Civil Procedure is not maintainable under Order 43 Rule 1(r) of the Civil Procedure Code.
23. In fact, in all those decisions the different High Courts have uniformly held that when the Court refuses to grant ad interim injunction and consequently issues direction for service of notice upon the defendant, such an order is essentially an order passed under Order 39 Rule 3 of the Civil Procedure Code and as such, is not appealable under Order 43 Rule 1(r) of the Civil Procedure Code.
24. Let me now consider as to how far the principles laid down in the said decisions by different High Courts, is acceptable as a judicial precedent.
25. For proper appreciation of the aforesaid problem, this Court feels that this Court is required to consider the provisions contained in Order 39 Rules 1 and 2, Order 39 Rule 3 and Order 43 Rule 1(r) of the Code of Civil Procedure. The aforesaid provisions of the Civil Procedure Code are thus set out hereunder:
Order 39 Rule 1. Cases in which temporary injunction may be granted.- Where in any suit it is proved by affidavit or otherwise:
(a) that any properly in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,
(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.
Order 39 Rule 2. Injunction to restrain repetition or continuance of breach.- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.
Order 39 Rule 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 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, and require the 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 stating that the copies aforesaid have been so delivered or sent.
Order 43 Rule 1. Appeal from orders.-An appeal shall lie from the following orders under the provisions of Section 104, namely:
(a) ...
(b) ...
(r) an order under Rule 1, Rule 2 Rule 2A, Rule 4 or Rule 10 of Order. ...
26. On perusal of the provisions contained in Order 39 Rules 1 and 2 as well as the provision contained in Order 39 Rule 3 of the Code of Civil Procedure, this Court has no hesitation to hold that Order 39 Rules 1 and 2 are the only enabling provisions which authorise the Court to pass interim injunction; be it ad interim or temporary. In fact, temporary injunction consists of two stages, i.e., first stage-ex parte ad interim injunction and second stage-contested temporary injunction. Ad interim injunction can be extended upto the disposal of the temporary injunction petition and temporary injunction continues upto the disposal of the suit.
27. On the contrary, if the provision contained in Order 39 Rule 3 of the Code of Civil Procedure is considered carefully, then at least, I cannot hold that the said provision is an enabling provision which authorises the Court to grant interim injunction at the ad interim stage. The said provision simply deals with the procedure as to how and under what circumstances ad interim order of injunction can be passed without service of notice.
28. The said provision makes it clear that in all cases relating to the prayer for temporary injunction, the normal Rule is,' to issue direction for service of notice upon the opposite party, if the application for injunction is not rejected at the threshold.
29. The said provision provides an exception which says that where it appears that the object of granting the injunction would be defeated by delay and where the Court proposes to grant an ad interim injunction without giving notice of the application to the opposite party, the Court is required to record reasons for its opinion as to how the object of granting injunction would be defeated by delay and thus may require the applicant to comply with the formalities regarding service of copies of the pleadings and filing of an affidavit stating that the copies of the pleadings have been so delivered or sent to the opposite party after grant of ad interim injunction.
30. The expression 'where it is proposed to grant an injunction' appearing in the proviso in the Order 39 Rule 3 is very significant here, as proposal to grant, cannot be equated with the actual grant of injunction.
31. In fact, the said provision does not deal with the circumstances under which temporary and/or ad interim injunction can be passed by the Court unlike the Order 39 Rules 1 and 2 of the Civil Procedure Code which specifies the purpose for which temporary injunction can be granted. The provision contained in Order 39 Rule 3 of the Civil Procedure Code, in my view, simply deals with the procedural part which is required to be followed by the Court in dealing with an application for temporary injunction.
32. In short, (i) when service of notice is mandatory before grant of injunction; (ii) when service of such notice can be dispensed with before grant of injunction and. (iii) in case of passing an ad interim order of injunction by dispensing with the requirement of such service of notice upon the opposite party, the steps which are required to be taken by the Court as well as by the party applying for injunction, have been specified in the provision contained in Order 39 Rule 3 of the Civil Procedure Code.
33. In my view, grant of ad interim injunction and/or refusal to grant ad interim injunction comes under the provision under Order 39 Rules 1 and 2 which are the only enabling provisions which authorise the Court to pass and/ or not to pass temporary and/or ad interim injunction depending upon the facts of a particular case.
34. Thus, when the learned Trial Judge refused to pass an ad interim injunction in, the said suit and also directed the parties to serve notice upon the opposite parties, the refusal to grant ad interim injunction, being essentially an order under Order 39 Rules 1 and 2 of the Code of Civil Procedure, is undoubtedly an order appealable under Order 43 Rule 1(r) of the Code of Civil Procedure.
35. As such, with due respect to the views expressed by different High Courts in the decisions cited by Mr. Roy, this Court is unable to accept the views expressed by different High Courts in the aforesaid decisions for the reasons as above.
36. Thus, this Court holds that the said appeal is well maintainable in law before the learned Appeal Court. As such, the learned Appeal Court did not commit any illegality in admitting the said appeal for hearing.
37. Let me now consider the other part of submission of Mr. Roy who contended that after the transfer of the suit from the Original Court to the Original Side of this Hon'ble Court, the Appeal Court loses its jurisdiction to hear the said appeal because of such transfer of suit.
38. In my view, the provision contained in Section 106 of the Code of Civil Procedure is the answer to the question raised by Mr. Roy, as above. What Courts to hear appeals are dealt with in Section 106 of the Civil Procedure Code which provides as follows:
Section 106. What Courts to hear appeals.-Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.
39. Though it is true that at the time of admission of the said appeal, the Appeal Court which admitted the said appeal, had the jurisdiction to entertain the said appeal and/or to deal with the same, as at the relevant time the Appeal Court had the jurisdiction to hear the appeal against the decree which would be passed in the suit, but due to subsequent transfer of the suit, the learned Appeal Court loses its jurisdiction, as the decree which will now be passed by the Original Side of this Court in the suit cannot be challenged before the said Appeal Court in view of the special provision contained in the Original Side Rules relating to appeals from decree.
40. Under such circumstances, this Court holds that the said appeal is required to be disposed of by the Hon'ble Appeal Court taking up appeals from orders in the Original Side.
41. Accordingly, this Court, in exercise of its jurisdiction under Section 24 of the Civil Procedure Code, transfers the said appeal being Misc. Appeal No. 86 of 2007 from the Court of the learned Additional District Judge, Barackpore to the Original Side of this Hon'ble Court.
42. The learned Appeal Court is, thus, directed to transmit the records relating to the said appeal to the Registrar, Original Side of this Hon'ble Court who will take steps to ensure registration of the said appeal immediately on receipt of the records, from the Court of the learned Additional District Judge, Barackpore, so that the said appeal can be placed for hearing before the Appeal Court taking up appeals from orders in the Original Side from the stage at which it was transferred and/or withdrawn, as aforesaid.
Let a copy of this order be transmitted to the Court of the learned Additional District Judge, Barackpore immediately.
43. Urgent xerox certified copy of this judgment, if applied for, be given to me parties, as expeditiously as possible.