MOHD. SADIK Vs. SAHIDA BI

JUDGEMENT

(1.) AFORESAID five appeals under Order 43, Rule 1 (r) of the Code of Civil Procedure (for short 'the Code') arise out of the order of refusing to grant temporary injunction on the applications under Order 39, Rule 1 and 2 of the Code which came up for hearing before D.P.S. Chauhan, J., wherein a question cropped up as to whether' 'the order which is not the order of grant of injunction under the provisions of Order 39, Rule 1 and 2 of the Code is appealable order as provided under Order 43, Rule 1 (r) of the Code." D.P.S. Chauhan, J. after referring to the definition of 'Order' in section 2 (14) and, section 104, Order 43, Rule 1, observed that Order 43, Rule 1 provides categories of orders which have been made appealable under Order 43, Rule 1 (r) of the Code and other category or nature of order not provided thereunder or such order made appealable under the provisions of law have not been made appealable. Then it was observed that Order 43, Rule 1 has provided three categories of appealable orders -(i) where the order refusing the relief is made appealable; and (ii) the order of grant of relief is made appealable; and (iii) the order where refusal or grant of relief is made appealable. Hence, from the language of Order 43, Rule 1 (r) the intention of Legislature is apparent that if -an order of grant of injunction is passed on an application under Order 39, Rule 1 and 2, then, an appeal lies under Order 43, Rule 1 (r) while an order of refusal to grant an injunction on an application under

(2.) TO deal with the question it would be appropriate to reproduce the definition of "Order" under Clause 14 of section 2, section 104, and Order 43, Rule 1 of the Code -

(3.) WE are concerned in these references, with an order passed under Rule 1, Rule 2 of Order 39 of the Code which has been made appealable under clause (r) of Rule 1, of Order 43 of the Code. In clause (r) of Rule 1 of Order 43, the words used are 'an order under Rule 1, Rule 2, Rule 2A, Rule 4.or Rule 10 of Order XXXIX'. The words used do not specify the nature of the order, that is, whether of grant or refusal of an injunction on an application under Order 39, Rule 1 and 2 as the nature and category of the order has been specified in other clauses of Rule 1 of Order 43 of the Code. Therefore, the expression 'Order' has to be understood in' the meaning as assigned in section 2 (14) of the Code, which necessarily means the formal expression of any decision by a civil Court which is not a decree. When an order is passed on an application under Order 39, Rule 1 and 2 of the Code, it decides the application either by way of grant of temporary injunction, or by refusal to grant temporary injunction. If no case is made out for grant of injunction, it would be an order of refusal to grant an injunction on an application under Rule 1 and 2 of Order 39 of the Code. Clause (r) of Rule 1 of Order 43 of the Code does not prohibit an appeal against the order of refusal nor it specifies that an appeal shall lie against order of grant of an injunction. It is well settled rule of interpretation that the Court should lean in favour of an interpretation which expands rather than shrinks a remedial right. A remedial provision of law is generally construed liberally. Rule 1 (r) of Order 43 of the Code creates a remedial right of appeal for protection of substantial and substantive rights. Rule 1 (r) of Order 43 does not say that an appeal shall lie from an order of grant of injunction under Rule 1 or Rule 2 of Order XXXIX. Therefore, there is no adequate reason for interpolating the words 'of grant' after the wards 'an order" in Rule 1 (r). Courts do not ordinarily make additions in enactments. That is a legislative function. The words 'an order of refusal' or an order of 'grant' in the language of clause (r) of Rule 1 of Order 43 of the Code significantly have not been used by the Legislature. In the context of clause (r) of Rule 1 of Order 43 the word 'Order' is to be understood in its plain meaning as assigned in section 2 (14) of the Code, which means the formal expression of any decision of the civil Court on an application under Order 39, Rule 1 and 2 whether it may be of grant or refusal of an injunction.