(1.) This revisional application has been assigned to this Bench by the Hon'ble the Chief Justice in view of divergence of judicial opinion expressed by two learned Single Judges on the question of maintainability of a revisional application from an order of injunction issued by an Appellate Court under Order 39, Rules 1 and 2 of the Civil Procedure Code, 1908 (hereinafter referred to as 'Code'). A learned Single Judge of this Court noted the divergence and opined that the matter should be placed before a larger bench. The learned Single Judge found that two conflicting opinions were expressed by two learned Judges in the following judgments: a) In the case of Gyan Singh & Ors. v. Guljar Singh & Ors., reported in 1988 (1) Calcutta Law Journal, 389, a learned Judge of this Court was pleased to hold that an appeal is maintainable against an order of the Appellate Court rejecting the application for temporary injunction filed by the plaintiff. b) A different view has been expressed subsequently by another learned Single Bench in the case of Murari Kumar Saraf v. Sri Jagannath Shaw reported in AIR 1994 Calcutta 205. In that decision, the learned Single Judge held that an interlocutory order passed by the First Appellate Court is not appealable and a revisional is maintainable. The learned Judge who subsequently delivered the judgment in Murari Kumar Saraf held that the previous judgment delivered in Gyan Singh (supra) was delivered per inquirium.
(2.) The facts of the case, which led to the aforesaid controversy, are noted below : The petitioner, in this revisional application, claimed that he is a tenant in respect of a portion of Premises No. 44/45, Ekbalpore Road (hereinafter referred to as the 'said premises') and, according to the petitioner, the said tenancy includes a garage. The opposite party No. 1 also claimed to be a tenant in respect of a portion of the said premises and claimed the said garage as a part of his tenancy. A suit, being Title Suit No. 320 of 1995, was filed by the opposite party No. 1 before the 6th Munsif's Court at Alipore and, in the said suit, the opposite party No. 1 prayed for a declaration of his title and mandatory injunction against the petitioner in respect of the said premises. An application for ad-interim order of injunction was ex- parte moved on behalf of the opposite party No. 1, but, no adinterim order was passed and against the said refusal, the opposite party No. 1 filed a Miscellaneous Appeal No. 362 of 1995 before the learned District Judge at Alipore. The learned District Judge passed an ad-interim order on 21.8.1995 as prayed for by the opposite party No. 1 and fixed the matter on 11.2.1995.
(3.) Against the said ad-interim order of injunction, an application under Order 39, Rule 4 of the Code for vacating of the said order was filed by the petitioner.