BABASAHEB S/O DHONDIBA SULE AND JALINDAR S/O DHONDIBA SULE Vs. ASRUBA S/O DHONDIBA SULE DASHRATH S/O DHONDIBA SULE ABIBAI

JUDGEMENT

(1.) A common question of law about the maintainability of the Revision Petitions directed against interlocutory orders cropped up after the Parliament introduced extensive amendment to the Civil Procedure Code by Amendment Act of 1999, which has come into force w. e. f. 1-7-2002. As the said question emerged repeatedly in various matters, I had directed the Registry to identify cases, wherein identical issues are involved and pursuant to the said direction, the office has placed on Board aforesaid matters, wherein a common question of maintainability of the Revision Petitions arises for adjudication. I have heard the learned Advocates appearing for the Revision Petitioners, so also the learned Advocates representing the respondents. The petitions are taken in two groups. Group A denote petitions which are admitted and pending final hearing and Group B denote cases which are at admission stage. All the petitions are being decided by this common order.

(2.) ALL the Revision Petitions are arising out of the orders passed by the Trial Court under Order 39 Rule 1 and 2 of C. P. C. , either granting or refusing injunction, which orders are carried in Miscellaneous Appeals before the District Judge under Order 43 Rule 1 (r) of the C. P. C. The First Appellate Court, in these matters, has either confirmed the order passed by the trial Court by granting or refusing injunction and/or has reversed the order. To decide the question of maintainability of the Revisions, it is required to be first ascertained as to whether the orders impugned are interlocutory in nature or otherwise. The said question is already answered by the learned Single Judge of this Court (Justice V. G. Palshikar) in a judgment reported in 2002 (4) Mh. L. J. 615 " Nagorao @ Arun s/o. Narayan Yerawar and others Vs. Narayan Nagan Yerawar and another" It is held by the learned Single Judge that, " the position of an order under Order 39 is, in my opinion, identical. The principal contentions raised by different parties in the suit regarding the subject matter for which the interim order is made are yet to be decided. The findings recorded by the learned trial Court or the appellate Court under Order 43, Rule 1 are prima facie findings dealing with the continuation or discontinuation of a temporary injunction granted or not granted. There can, therefore, be no doubt that the order under Order 39 Civil Procedure Code is a temporary order.

(3.) THE next judgment dealing with the same question, is by the same learned Judge and it has been rendered prior in point of time than the judgment, referred to hereinabove. The learned Judge, while deciding the batch of petitions dealing with the identical question, in the case of "rajabhau Rahate Vs. Dinkar Ingole" 2002 (3) M. L. J. 921" has had an occasion to have a retrospect of the provisions contained in Section 115 of the C. P. C. , as it stood prior to the Amending Act of 1976 and thereafter, with a view to find out the legislative intent, in amending the Civil Procedure Code, by an amending Act of 1999, which has come into force from 1st July, 2002. It is observed,