Gajraj Singh and ors. Vs. Ramkumar and ors. - Court Judgment

Excerpt:
- - the trial court having not been satisfied on the material, did not pass an ex parte temporary injunction but directed issue of notice to the defendants.s.k. dubey, j.1. petitioners, who are defendants in the suit, have presented this petition under art. 227 of the constitution of india, for quashing of the order (annexure p/2), dated 28-8-1981, passed in misc. civil appeal no. 41 of 1981, by first additional judge to the court of district judge, vidisha, camp basoda, whereby the petitioners have been restrained from interfering with the possession of the plaintiffs/respondents nos. 1 and 2, over the suit land.2. the material facts leading to this petition are thus the respondents nos. 1 and 2/ plaintiffs instituted a suit for declaration of title and permanent injunction in relation to the land situated at survey no.51/1, area 3.547 hectares, in village jafrabad pipariya, tehsil basoda. the plaintiffs by an application under order 39 rules 1 and 2, cpc, prayed foran order of grant of temporary injunction. the trial court having not been satisfied on the material, did not pass an ex parte temporary injunction but directed issue of notice to the defendants. the plaintiffs aggrieved of the order of issuance of notice, preferred an appeal under order 43, rule 1(r), cpc. the appellate court after taking certain documents on record on an application under order 41, rule 27, finally decided the application under order 39 rules 1 and 2 granting temporary injunction, restraining the defendants/petitioners from interfering with the possession of the plaintiffs over the suit land. aggrieved of this order petitioners have approached this court.3. shri arun mishra, learned counsel for petitioners, attacked the order on two counts firstly, the appeal before the lower appellate court was not maintainable, as the order under appeal was not an order of refusal or grant of temporary injunction, but was one under order 39, rule 3, cpc, which was not appealable. counsel pressed into service. h. bevis & co. v. ram behari, air 1951 all 8; iqbalsingh v. chanan singh, air 1966 pun 165; khusilal v. gorelal, air 1986 mp 47. it was next contended that even if the lower appellate court was of the opinion that the appeal was maintainable, it could not have finally granted the temporary injunction till the decision of the suit, as it would amount to hold up the proceedings pursuant to the reply to show cause notice; therefore, the appellate court ought to have remitted the case to trial court for passing order on the application under order 39, rules 1 and 2. to support the contention, reliance was placed on a decision of this court in case of chhaganlal v. niwasdas, air 1963 mp 208.4. to appreciate the first contention, a reference to section 104, cpc is necessary, which is extracted in extenso:'104. orders from which appeal lies. (1) an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this code or by any law for the time being in force, from no other orders:-- xxx xxx xxx xxx xxx (ff) an order under section 35a; (ffa)an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be; (g) an order under section 95; (h) an order under any of the provisions of this code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules; provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) no appeal shall lie from any order passed in appeal under this section.' 5. a bare look to this section shows that an appeal lies only from those orders which have been enumerated in this section and from no other orders. for the purposes of this petition clause (i) of section 104(1) is relevant which speaks that an appeal shall lie under rules from which an appeal is expressly allowed by rules. section 105, cpc, puts a further bar on the filing of an appeal against an order made by a court in exercise of its original or appellate jurisdiction, unless an appeal is expressly provided against such order.6. as the order was passed under order 39, rule 3, cpc, a look to rules 1, 2 and 3 of the said order is also necessary. rule 1 of order 39 speaks of grant of temporary injunction in any suit. rule 2 speaks of injunction to restrain repetition or continuance of breach in any suit. rule 3 of order 39 empowers the court to direct notice to opposite party before grant of injunction. this rule also empowers the court to grant injunction ex parte, if in the opinion of the court there are materials on record for passing such an ex parte injunction and the delay in issue of notice would defeat the object of the injunction. but, for such grant of ex parte injunction the proviso to thisrule makes it incumbent on the court torecord its reasons for its opinion.7. in the present case, the trial court on the material placed before it, did not find a case of grant of ex parte injunction and, therefore, directed issue of notice. aggrieved of this order, plaintiffs preferred the appeal under order 43 rule l(r), cpc, relevant provision of which is quoted below :'r. 1 appeals from orders. an appeal shall lie from the following orders under the provisions of section 104, namely:-- (a) to (q) xx xx xx xx xx (r) an order under rule 1, rule 2 (rule 2a), rule 4 or rule 10 of order xxxix; (s) to (w) xx xx xx xx xx'. 8. a bare reading of order 43, rule 1(r) shows that an appeal lies from an order of the trial court if the order is passed in any of the rules specified in clause (r). it is apparent from order (annexure p/2) that the trial court passed it under rule 3, but rule 3 is not one of the rules specified in clause (r) of order 43, rule 1; hence, it is evidently clear that no appeal lay against such an order directing issue of notice under rule 3 of order 39, which is the view taken by a learned judge of this court in khusilal's (air 1986 mp 47) (supra) with which we entirely agree and affirm.9. reliance by shri j.p. sharma, learned counsel for the plaintiffs, on the decision of this court in case of vasant diwakar v. union of india, 1983 jab lj 489 : (air 1983 mp 129), is of no help to the plaintiffs, as it lays down that even against an ex parte interim injunction passed under order 39, rules 1 and 2, cpc, an appeal lies; that position is undisputed, as it is settled that an order of injunction, whether interim or final, is appealable under order 43, rule 1(r), cpc.10. as a result of the above discussion, we hold that the appeal under order 43, rule 1(r), cpc was not maintainable; as a consequence of that the order impugned being without jurisdiction, cannot be sustained. in view of this, it is not necessary for us to deal with the second contention raised by shri mishra.11. in the result, the petition is allowed; order (annexure p/2) is quashed, and the case is sent back to the trial court to dispose of the application under order 39, rules 1 and 2, cpc, in accordance with law. we have been informed by counsel for parties that the trial in the suit has yet not concluded; therefore, in the circumstances, we direct the trial court to conclude the trial expeditiously, as far as possible, within a period of six months from the next date fixed.12. the outstanding amount of security deposit, if any, be refunded to petitioners.13. no costs.