INDRADEO SINGH Vs. DISTRICT JUDGE

JUDGEMENT

(1.) The present writ petition has been filed for quashing of the order dated 17.4.1993 passed by the Incharge District Judge, Gorakhpur by which the Misc. Appeal preferred by Zila Parishad has been admitted and the operation of the injunction order dated 27.3.1993 of the Civil Judge has been stayed.

(2.) It appears that the petitioner Indradeo Singh filed a suit for injunction 27.3.1993 restraining Zila Parishad from cancelling the proceedings of auction held in his favour with regard to right to realise Tahbazari in Kushmi-Bazar in the year 1993-94. Alongwith the suit, an injunction application was moved and on the same day, learned Civil Judge passed an interim order restraining Zila Parishad from re-auctioning the market and from interfering in the collection of Tahbazari. The record shows that Zila Parishad filed an application for vacating the ex-parte injunction order on 29.3.1993. Initially 14.4.1993 was fixed for hearing of the injunction application but as a holiday was declared, on 15.4.1993, learned Civil Judge fixed 19.5.1993 for hearing of the injunction application. The Zila Parishad then moved an application on 15.4.1993 itself for fixing an early date for hearing of the application moved by it for vacating ex-parte injunction order. The record of the writ petition does not show that an early date was fixed. Thereafter, Zila Parishad filed an appeal which was admitted and operation of the injunction order dated 27.3.1993 was stayed by the learned District Judge on 17.4.1993 and it is this order which has been impugned in this writ petition.

(3.) Sri P.K. Mishra, learned Counsel for the petitioner has submitted that as the defendant Zila Parishad has already filed an application under Order 39, Rule 4 Code of Civil Procedure for vacating the injunction order, the appeal preferred by it against the said order was not maintainable and the impugned order the learned District Judge admitting the appeal and staying operation of the injunction order is illegal and without jurisdiction. According to the learned Counsel, a litigant can avail of only one remedy as provided by the Code of Civil Procedure namely, either he can file an application under Order 39, Rule 4 Code of Civil Procedure or he can prefer an appeal. But he cannot simultaneously pursue both the remedies. In my opinion, the contention raised by learned Counsel has no substance. Order 39 of the Code deals with temporary injunction and Rules 1 and 2 give power to the Court to grant a temporary injunction in order to prevent waste or damage or alienation of the property or to prevent the defendant from dispossessing the plaintiff or to restrain the defendant from committing breach of contract or other injury of any kind. Rule 3 provides that the Court shall in all cases, except where it appears that the object of granting injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. Rule 4 provides that an order for injunction may be discharged or varied or set aside by the Court on an application made by any party dissatisfied with such order. Order 43, Rule 1(r) provides that an appeal shall lie from an order under Rule 1, Rule 2 and Rule 4ORDER39, Code of Civil Procedure It is, therefore, clear that an appeal is maintainable both against the ex-parte injunction order as well as against an order passed by the Court after hearing the opposite party. The Code has not made any such provision that if a party has moved an application for vacating an ex-parte order, the appeal against the said order would not be maintainable till the decision of the application or till a final order is passed under Rule 4ORDER39, Code of Civil Procedure It is well settled that the appeal is a creation of statute and the right of appeal can be exercised subject to the conditions and in accordance with the procedure provided by the relevant provision which enables the aggrieved party to prefer an appeal. Order 41, Code of Civil Procedure gives detail procedure for filing appeals against original decrees and it also provides the procedure and Indochinese under which interim order can be passed. In some of taxing statutes it is provided that the appeal will not be entertained unless certain amount of tax is deposited. Sec. 9(1B) of U.P. Sales Tax Act provides that no appeal against the assessment order shall be entertained unless the appellant has deposited the amount of tax admitted by him. There is no such condition under Order 43, Rule 1(r), Code of Civil Procedure that if an application has been moved under Rule 4ORDER39, Code of Civil Procedure for vacating an ex-parte injunction order and the said application has not been disposed of, the appeal would not be maintainable. In absence of any such specific provision in the rules, it will not be proper to restrict the right of appeal conferred by the statute by holding that the appeal would not be maintainable if the application to vacate the ex-parte order is still pending.