BROOKE BOND INDIA LTD Vs. DINKAR LANDGE

JUDGEMENT

(1.) This is an appeal filed by the defendants in S.C.No. 6778 of 1983, against an order granting an ad interim injunction. This order was passed in Notice of Motion No. 6 6107 of 1983, taken out in the abovementioned suit.

(2.) The impugned order is an ex parte ad interim injunction. The contention of the appellant is that this injunction is so palpably untenable that the appellant would be entitled to make successful grievance about it in this appeal. shri Setalwad for the appellants submitted that, according to him, a mere reading of the plaint as also the affidavits in support of the notice of motion would show that the suit is nothing but the misuse of the process of law. He also urged that consequently no injunction ought to have been issued in such a litigation. As against this, it was contended on behalf on behalf of the respondent-plaintiff that the plaintiff has a cause of action as mentioned in the plaint and that there is nothing improper on the part of the plaintiff to file the suit to the type which is before me in this appeal. It would, therefore, be necessary for me consider the rival contentions in order to find out as to whether a prima facie case is made out by the plaintiff for getting an ex parte ad interim injunction. However, I would like to make it clear that observations in this judgment are primarily made with a view to decide this interim proceeding about the correctness or otherwise of the grant of ex parte, ad interim injunction.

(3.) Before going into the merits of the appeal, I would like to consider the preliminary objection raised on behalf of the respondent that an ex parte ad interim injunction is not appealable. Order XLIII, r.1 (r), provides that the order under r. 1, 2, r, 2A, r. 4. or r. 10 of Order XXXIX is appealable. Here the relevant rule is r. 1 and r. 2. IT was contended by Shri Gursahani for the respondent that an ex parte ad interim injunction is liable to be discharged, varied or set aside under r. 4 and such an order is to be made by the court which has originally granted the injunction, provided, of course, the aggrieved party satisfies the court that the ex parte injunction deserves to be set aside. Relying upon r. 4 Shri Gursahani contended that the only remedy that is available to the aggrieved party about the grant of an ex parte ad interim injunction is to place his case before that very court under r. 4 and not to come in appeal. He has relied upon the decisions of the Madras High Court and the Karntaka High court for the purpose of contending that such an ex parte ad interim injunction is not appealable. The Madras High court in the case of Abdul Shukoor Sahib v. Umachander, AIR 1976 Mad, 350, has held that such an order is not appellable. I would like to reproduce the relevant head note which reads as follows :