MOHD SHARIF Vs. UNION OF INDIA UOI

JUDGEMENT

(1.) This Special Appeal has been preferred against an order of Mr. Justice Mathur by which he vacated an interim injunction which had been issued on an application made by the appellants for the issue of a temporary injunction.

(2.) The circumstances in which the injunction had been applied for were these. The appellants filed a suit in the court of the Munsif claiming a permanent injunction restraining the defendants of the suit from deporting them out of India. The suit was based on the ground that the appellants were Indian nationals and were entitled to remain in the country. The suit was dismissed by the trial court and the order of dismissal was upheld by the lower appellate court. A second appeal was then filed by the appellants challenging the dismissal of the suit. After the second appeal had been admitted the appellants made an application, presumably under Order 39 Rule 1 C. P. C. praying for a temporary injunction restraining the respondents from deporting them out of India during the pendency of the appeal. Notice was issued in respect of the application and an interim injunction was issued restraining the respondents from deporting the appellants meanwhile. When the application came up for final disposal after the notice had been served Mr. Justice Mathur vacated the interim order and for all practical purposes rejected the application. It is against that order that the present appeal has been filed under Ch. VIII, Rule 5 of the Rules of Court.

(3.) The Office has raised two objections. The first is that the order appealed against is not a judgment and is consequently not appealable, The second is that even if the order is deemed to be a judgment a special appeal could not be filed against it in the absence of a declaration granted by Mr. Justice Mathur about the fitness of the case for such an appeal.