MOHD RAFI KHAN Vs. D J ALIGARH

JUDGEMENT

(1.) A. K. Banerji, J. By means of the present writ petition the petitioner has prayed for quashing of the impugned order dated 18-4-1995 (Annexure-12) passed by the respondent No, 1 and the impugned order dated 20-4- 1995 (Annexure-13) passed by the respondent No. 2. He has also prayed for a writ of mandamus commanding the respondents not to interfere with working of the petitioner as the Principal of the institution in question.

(2.) BRIEF facts, as set out in the petition, are that the petitioner was appointed on the post of Principal of the institution known as Aligarh Public School, Aligarh, which is imparting education from Nursery to class X. The society which runs the institution as known as Sir Syed Education Development Society, Aligarh, which is registered under the Societies Regis tration Act. According to the petitioner, the defendant-respondents suddenly, due to mala fide reasons, wanted to terminate the cervices of the petitioner and started interfering with his functioning as the Principal. Consequently, the petitioner had no alternative but to file Suit No, 122 of 1995 in the Court of Munsif, Koil, Aligarh, for permanent injunction against the defendant-respondents restraining them from terminating the services of the peti tioner or from interfering with his functioning as the Principal. The Suit was filed on 1-4-1995 and along with the plaint the petitioner also filed an application under Order XXXIX Rules 1 and 2 read with Section 151, C. P. C. praying for temporary injunction during the pendency of the suit. The trial court issued notice to the defendants and also passed an ad interim injunction order restraining the defendants from interfering with the functioning of the plaintiff-petitioner as the Principal of the institution till 10-4-1995. Oa 15-4-1995 the operation of the interim injunction order was extended till 17-4-1995 which was the date fixed for hearing the objections of the defendants. On 17-4-1993 the interim injunction order was again extended till 18-4-1995. In the meantime on 4-4-1995 the defendant- respondents 4 and 5 preferred a Misc. Appeal before the District Judge, Aligarh against the ex pane interim injunction dated 1-4-1995 granted by the trial court (respondent No. 3 ). Along with the memo of appeal an application for staying the operation of the interim injunction order dated 1-4-1995 was also Sled. The appearance was put in on behalf of the petitioner in the aforesaid appeal on 10-4-1995 and a preliminary objection was raised regarding the maintainability of the appeal. The preliminary objection was heard by the District Judge (respondent No. 1) on 17-4-1995 and by order dated 18-4-1995, which is also impugned in the present petition, it was held that the appeal was maintainable. Consequently, the appeal was admitted and transferred to the court of respondent No. 2 for hearing and disposal. The parties were directed to appear before the said court on 19-4-1995 and in the meanwhile the operation of the ex parte interim injunction order dated 1-4-1995 was stayed. The matter was heard by the respondent No. 2 who vide the impugned order dated 20-4-1995 allowed the appeal filed by the defendant respondents No. 4 and 5 and set aside the ex parte ad interim injunction order dated 1-4- 1995 passed by the respondent No. 3. Feeling aggrieved, the present writ petition has been filed.

(3.) I have considered the contention of the learned counsel for the petitioner and have also carefully perused the aforesaid decisions cited by him. In the case of Zila Parishad (supra), (FB) the question which was referred for the decision was to the effect whether an ex parte order issuing injunction against the defendant was appealable in the facts of the referred cases. The main controversy, therefore, before the Full Bench was whether a miscellaneous appeal under Order XLIII, Rule 1 (r) lay against an ex parte ad interim injunction order or only against the final order passed by the trial court after hearing the defendants, it was held that even against an ex parte order issuing temporary injunction it was open to the defendants to file an appeal straightway under Order XLIII, Rule 1 (r), C. P. C. While considering the argument in the said case the following observations were made in paragraph 16 of the judgment: "16. The language and the object of Rule 1 (r) of Order XLIII, and the scheme of Rules 1 to 4 of Order XXXIX, show that an appeal also lies against the ex parte order of injunction. As soon as an interim injunction is issued and the party affected thereby is apprised of it has two remedies ; (1) he can either get the ex parte injunction order discharged or varied or set aside under Rule 4 of Order XXXIX, and if unsuccessful avail the right of appeal as provided for under Order XLIII, Rule 1 (r) ; or (2) straightway file an appeal under Order XLIII, Rule 1 (r) against the injunction order passed under Rules 1 and 2 of Order XXXIX, C. P. C. It is not unusual to provide for alternative remedies. For instance, when an ex parte decree is passed against a person, he has two remedies; either he may go up in appeal against the ex pane decree or he may seek to get the ex parte decree set aside by the same court. " Learned counsel for the petitioner has placed strong reliance upon the aforesaid observation made by the Full Bench which has also been followed by a learned Single Judge in the case of Mumtaz Khan (supra) He has further contended that in the present case the defendant-respondents and 5 had filed appeal against the ex pars injunction order dated 1-4-1995 and had also filed objection against the application for temporary injunction. Therefore in view of the observations of the Full Bench, it has been contended that the appeal would not be maintainable and ought to have been dismissed by the District Judge (respondent No. 1) instead of admitting the same.