KEFAYAT HUSAIN Vs. ABDUL RASHID

JUDGEMENT

(1.) This is a defendant's application in revision arising out of an order allowing an appeal from the order of the Munsif refusing to punish the applicant for breach of the order of a temporary injunction. The plaintiff opposite-party brought a suit for the issue of a permanent injunction against the applicant ordering the applicant to refrain from interfering with the opposite-party's possession over the crop of a grove, The opposite-party then made an application under Order 39, Rule 2 C. P. C, for the issue of a temporary injunction to the above effect during the pendency of the suit, This application was allowed.

(2.) The opposite-party alleged that in spite of the order of injunction the applicant granted a lease in respect of the crop of the grove to one Pisa and put Pisa in possession over the same. The opposite party prayed that the applicant be punished for disobedience of the order of injunction. The Munsif held that it was not satisfactorily established that the applicant had committed a breach of the order of injunction. He, therefore, dismissed the opposite-party's application. Against this order the opposite-party went in appeal to the lower appellate court. The lower appellate court reversed the order of the Munsif and directed that the applicant be detained in the civil prison for two weeks for disobeying the order of injunction. This application in revision is directed against the order of the lower appellate court.

(3.) The only point urged before me is that the lower appellate court had no jurisdiction to hear the appeal, It has been pointed out that this court has amended Order 39, Rule 2 C.P.C. Originally Rule 2 of Order 39 contained sub-rules (3) and (4). Sub-rule (3) dealt with disobedience, or breach of any of the terms of an order of temporary injunction. Sub rule (4) dealt with an attachment made by way of punishment for breach of an order of injunction. These two sub-rules have been removed from Rule 2 and placed fender a separate rule as Rule 2(A)-This amendment was made in 1941. Under Order 43, Rule 1 sub-rule (r) an appeal is provided against an order passed under Rule 1. Rule 2, rule 4 or rule 10 of Order 3y. Therefore, as Rule 2 of Order 39 originally stood an appeal was provided against an order passed under sub-rule (3) of Rule 2 in respect of disobedience of an order of injunction. After sub-rules (3) and (4) of Rule 2 were taken out of Rule 2 and placed in the Code as Rule 2(A) no consequential amendment was made in order 43, rule l (r). I have no doubt that this was by an oversight. Rule 2(A) should have been added in sub-rule (r)of Order 43(1), As it is, however, this was not done and consequently it must be held that no appeal lay to the lower appellate court. As the order of the lower appellate court was passed without jurisdiction, it must be set aside.