STATE OF GUJARAT Vs. K R NAYAR

JUDGEMENT

(1.) This is the revision application by the State of Gujarat and the Commandant S.R.P. Group No. VIII Gondal being aggrieved by the judgment of the learned Extra Assistant Judge at Gondal in the respondents Civil Misc. Appeal No. 45 of 1981 preferred by him under Order 43 Rule 1 (r) of the Civil Procedure Code. The said appeal had come to be filed by the opponent-plaintiff of the Civil Suit No. 272 of 1980 filed by him in the court of the Civil Judge (S.D.) Gondal.

(2.) In order to understand this controversy it is necessary to refer to a few facts. I will refer to the opponent as the plaintiff and the State of Gujarat and the Commandant S.R.P. Group No. VIII Gondal as the defendants. The plaintiff was serving as a driver with the S.R.P. located at Gondal. He was appointed as a driver and he is said so be given Rs. 73/- p.m. as the additional emoluments for working as a driver. Then there came to be passed an order admittedly ex-parte asking the petitioner to serve only as a constable and not as a driver. This was treated by the plaintiff as an order of punishment because the vehicle driven by the plaintiff was allegedly involved in an accident that caused damage to the States vehicle to the tune of Rs. 20 0 as asserted by the defendants. This impugned order of alleged reversion was challenged by the plaintiff by filing the aforesaid suit. Ordinarily the defendants being a State and its public servant a notice under Section 80(1)(c) was a condition precedent to the filing of the suit but the plaintiff took recourse to Section 80(2) of the Code and requested the learned Judge to grant him leave to institute the suit without serving any notice as required by Section 80(1). That application seems to have been ex-parte granted because the learned Judge then issued an ad-interim injunction. The learned Judge then proceeded to hear the parties and ultimately held inter alia that before the ad-interim injunction was served on 16-12-1980 the transfer had already been implemented and therefore there was no inconvenience or irreparable hardship to the plaintiff even if the order of ad-interim injunction was vacated. The learned Judge also held as follows: In the instant case after hearing both the parties this court has come to the conclusion that no urgent or immediate relief requires to be granted in this suit in favour of the plaintiff. The learned trial Judge therefore acted under the proviso appended to Section 80(2) and ordered the return of the plaint for presentation to the court after complying with the requirement of Section 80(1). Being aggrieved by the said vacating of the injunction and also by the order returning the plaint for due compliance the aforesaid appeal in question had come to be filed under Order 43 Rule 1(r) of the Civil Procedure Code.

(3.) It is no doubt true that in a duly competent suit if an injunction is vacated or granted the order of vacating or granting the injunction is appealable. An appeal is a statutory right and there can be no right to appeal unless it is specifically provided for. The learned trial Judge vacated the ad-interim injunction and also passed an order that them was no urgency in the matter and therefore proviso to subsection (2) of Section 80 was attracted and therefore he consequently passed an order for returning the plaint for due compliance with the provisions regarding notice. This part of the order of the learned trial Judge is not appealable. Order 43 Rule 1 was suitably amended when the omnibus amendments were introduced in the Civil Procedure Code as per the Amending Act No. 104 of 1976 which came into effect with effect from 1-4-76. Curiously enough we find that the order under Section. 80(2) proviso is not made appealable. So the learned appellate Judge was clearly in error in dealing with that order and setting aside the same. If that order stood the whole bottom of the litigation was knocked out because there was no plaint no suit and therefore there was no question of any entertainment of the appeal in a pending suit. On this technical ground I hold that the learned appellate Judge had no jurisdiction to entertain the appeal which he did and therefore this order is liable to be set aside as the one without jurisdiction