NATABAR DAS Vs. BRAJA KISHORE RAHA

JUDGEMENT

(1.) The plaintiff-appellant has filed title suit No. 109 of 1996 for declaration of right of passage over the disputed land and for permanent injunction restraining defendants 1 and 2 from closing the passage. During the pendency of the suit, an application under Order 39, Rules 1 and 2, C.P.C. was filed which was dismissed by the trial Court after hearing both sides. Thereafter, the plaintiff filed Misc. Appeal No. 32 of 1996 under Order 43, Rule 1, C.P.C. before the Additional District Judge, Jajpur. During the pendency of the said appeal, the present appellant filed a Miscellaneous Petition under Order 39, Rules 1 and 2, C.P.C. seeking for ad interim order of injunction against the defendants-respondents forbidding them from changing the status quo of the suit land till disposal of the said Miscellaneous Appeal. In the said miscellaneous proceeding, the Additional District Judge passed an order on 8-8-1997 to the following effect :-

(2.) While entertaining the present appeal, on the basis of fresh application under Order 39, Rules 1 and 2, C.P.C., this Court had passed an order directing the parties to maintain status quo as on 15-9-1997 until further orders. As indicated in order No. 2 at the time of entertaining the matter, it was expressly mentioned that the question of maintainability of the appeal under Order 43, Rule 1, Code of Civil Procedure, is to be considered at the time of hearing.

(3.) Before entering upon the merits of the case, it is appropriate to decide about the maintainability of such an appeal. There is no dispute that an order under Order 39, Rules 1 and 2, C.P.C., passed by a Court in its original jurisdiction is appealable under Order 43, Rule 1 in view of the specific provisions contained in Section 104 (1)(i) read with Order 43, Rule 1 (r), C.P.C.. There is also no dispute that no further appeal lies against the final decision in such appeal in view of the specific provisions contained in Section 104(2) and Section 105 (1), C.P.C. The learned counsel for the appellant has, however, contended that the present appeal is not against the final decision in the miscellaneous appeal filed before the lower appellate Court, but against an order passed in a miscellaneous proceeding under Order 39, Rules 1 and 2, C.P.C. and as such, the said order passed on the petition under Order 39, Rules 1 and 2 is appealable under Order 43, Rule 1(r), C.P.C.