BHASKARAN Vs. AMBIKA

JUDGEMENT

(1.) The subject of this revision is an ex parte order of "Injunction and notice" passed by the Munsiff's Court at the instance of the plaintiff respondent, restraining the defendant petitioner from trespassing upon item 1 in the plaint. The respondent challenged the maintainability of the revision, contending that an appeal alone will lie from the order to the District Court - even if the petitioner does not choose to appear in the Trial Court in answer to the notice and contest the interim order - while the petitioner asserted that the order is not appealable and that a revision is his only remedy. That is the sole question in this revision.

(2.) O.39, Code of Civil Procedure, deals with temporary injunctions and by R.1 and 2 empowers the court to issue orders of injunction under the circumstances specified therein. R.3 provides that before granting an injunction the court shall direct notice of the application to be given to the opposite party except where it appears that the object of granting the injunction would be defeated by the delay. The proviso to R.3, introduced by the recent Amendment Act 104 of 1976, lays down that the Court has to record its reason for issuing an injunction without giving notice to the opposite party and that it has also to require the applicant to take the steps specified in clause (a) (i) to (iii) and clause (b). Skipping over R.3A which is not relevant, R.4 entitles any party dissatisfied with the order of injunction to get it discharged or varied or set aside by the court. The only other provision that falls to be noticed is O.43, R.1(r) which allows appeal to be filed from an order, so far as material, under Rule l, R.2 or R.4 of O.39.

(3.) The petitioner contends that the order of injunction having been passed without notice to him, it fell within R.3 of O.39 and was therefore unappealable under O.43, R.1(r) which provides for appeals only from orders under R.1, 2 and 4 of O.39. There is no force in this contention. Now R.1 of O.39 - in this case the injunction is under R.1(c) - provides for the grant of an injunction "until the disposal of the suit or until further orders". Likewise R.2(2) lays down that injunction may be granted "on such terms as to the duration of the injunction" etc. The two rules therefore contemplate interim orders of injunction endurable until the disposal of the suit or until further orders. Whether an order of injunction is to operate only till cause is shown by the opposite party against it or whether it is to remain in force till the disposal of the suit, it is nonetheless an order of temporary injunction within R.1 or 2 of O.39. When the Court issues an order of injunction and notice to the opposite party as in this case it is really passing an order until further orders falling squarely within O.39, R.1 and therefore appealable under O.43 R.1(r) O.43 R.1(r) itself does not say that appeals shall lie only from final orders and an ex parte order is as much an order of injunction as the final order under O.39. O.39, R.3 on which counsel for the petitioner based his argument does not provide for orders of injunction; it lays down only a rule of procedure under which the Court might dispense with the initial notice before issuing an order of injunction. The order of injunction, whether interim or final, is therefore an order falling within R.1 or 2 of O.39 and therefore appealable under O.43 R.1(r). Nor is the appealability taken away by the circumstance that R.4 of O.39 enables the order of injunction to be discharged, varied or set aside on application made for that purpose, for two alternate remedies can coexist with an option to the aggrieved party to invoke the one or the other - to apply under R.4 of O.39 or to appeal under O.43 R.1(r). The provisions of the relevant rules lead no support to the petitioner's contention.