MOTILAL RAMDEV TELI Vs. BHANDARI

JUDGEMENT

(1.) Present is an appeal under Order 43, Rule 1 (r) read with Section 104 of the Code of Civil Procedure against the order dated 16-2-2001 passed by the First Additional District Judge, Soorajpur (Surguja) in Miscellaneous Appeal No. 2/2001.

(2.) The plaintiffs had filed a civil suit in which they had made an application for grant of injunction. In the said suit the defendant also made an application for grant of injunction. The trial Court rejected the defendants application therefore he preferred an appeal under Clause (r) of Order XLIII, Rule 1 of the Code of Civil Procedure, 1908. Learned appellate Court allowed the appeal filed by the defendant and restricted the present applicants/plaintiffs from interference with the defendant's possession over the suit land. Against the order passed in appeal granting injunction in favour of the defendant, the plaintiffs have filed this appeal. On being asked about the maintainability of this appeal learned counsel submits that as the injunction has been granted for the first time in appeal, an appeal under the provisions of Order 43 (1) (r) of the Code of Civil Procedure shall lie to the High Court. In the opinion of this Court the argument is mis-conceived. Order 43 Rule (1) (r) provides that when a Court passes an order on an application submitted under Order 39, Rules 1, 2, 2A, 4 or 10 then the party aggrieved by the said order may prefer an appeal to the Court to which an appeal lies. In the present case the defendant's application filed under Order 39, Rules 1 and 2 of the Code of Civil Procedure was rejected and feeling aggrieved by the rejection order he had filed an appeal under Rule 1 or Order 43. Clause (r) or Rule 1 of the order 43 does not say that if an injunction order is granted in favour of the person seeking injunction then aggrieved party can again file a miscellaneous appeal under Order 43.

(3.) Order 43 is required to be read with Section 104 of the Code of Civil Procedure. Section 104 of the Code of Civil Procedure reads as under :