SANKAR KUMAR GHOSH Vs. STATE

JUDGEMENT

(1.) This revisional application tinder Section 115 of the Code of Civil Procedure is directed against an order dated 4-1-83 passed by the learned District Judge, Hooghly in Misc. Appeal No. 4 of 1983 staying the operation of an ex parte order of ad interim injunction dated 22-12-82 made by the learned Munsif-in-charge 1st Court, Hooghly in Title Suit No. 256 & of 1982.

(2.) It appears that on 23-12-82 the petitioner along with opposite party NO. 2 filed Title Suit No. 256 of 1982 in the First Court of Munsif, Hooghly against the defendant-opposite party No. 1, Dun- lop India Limited challenging the order of suspension and the charge-sheet issu ed against the petitioner by the defen dants' letters Nos. CS/2/82 and CS/1/82 dated 26-11-82 respectively. The plaintiff also filed a petition under Order 39, Rule 1 and 2 read with Section 151 of the Code for an order of temporary injunction against the defendant restraining it from giving effect to the said charge-sheet and also from taking any further penal action against the plaintiff till the disposal of the suit and an order of ad interim in junction to that effect on the grounds stated in the petition. On the same date the learned Munsif passed order issuing notice on the defendant to show cause within 10 days from the service thereof why the plaintiff's petition for temporary injunction should not be allowed and granting an ad interim injunction in terms of the plaintiff's prayer against the defendant till the disposal of the injunc tion matter. The defendant company ap peared in the suit and on 3-1-83 moved an application under Order 39, Rule 4 of the Code with notice to the plaintiffs for vacaing their interim injunction. The learned Munsif fixed the matter on 6-1- 83 for hearing. In the meantime on 4-1- 83 the defendant preferred Mise. Appeal No. 4 of 1983 before the learned District Judge, Hooghly against the order of ad interim injunction and applied for stay of operation of the said order till the disposal of the appeal; The learned Dis trict Judge ordered issue of notice upon the plaintiffs-respondents to show cause within seven days of service of the notice why the stay order as prayed for should not be granted and passed the impugned order of interim stay of operation of the order of ad interim injunction under appeal.

(3.) It is, submitted by the learned advocate for the petitioner that the learned District Judge has acted illegally or with material irregularity in exercise of his jurisdiction in passing the impugned stay order as no appeal flies) under Order 43, Rule 1 (r) of the Code against an order of ad interim injunction when an application under Order 39, Rule 4 of the Code for varying or vacating the said order is pending before the Court of first instance. In support of his submissions he has relied on the Bench decision in Ab-dul Shukeer v. Uma Chander, AIR 1976 Mad 350 and in Zilla parishad v. B. R. Sharma (FB). On the other hand it is submitted by the learned Advocate for the defendant-opposite party No. 1 that the remedies available to the defendant against an ex parte order of ad interim injunction are by way of an application for vacating or varying the order under Order 39, Rule 4 and an appeal under Order 43, Rule 1 (r) of the Code and that the two remedies being concurrent, there is no substance in the present revisional application. In support of this contention reliance has been placed on the Bench decision in United Club v. Nowgong Football Association, AIR 1964 Assam 81 in which the point at issue in the present case directly arose and was decided.