ASHOK TSHERING LAMA Vs. TSHERING WANGDI

JUDGEMENT

(1.) The Civil Judge, Gangtok, on an application made lo him for a temporary injunction by the petitioner-plaintiff in a suit pending in high Court, has issued notice to the respondent-defen?dant to show cause why such an injunc?tion shall not be granted, but has de?clined to grant any ad interim injunc?tion ex parte. The petitioner-plaintiff seeks to assail the order in this revisional proceeding.

(2.) The impugned order having been passed on 27-8-81 and the present revi?sion having been filed on 4-1-1982, the question that immediately arises is whe?ther the revisional application is barred by limitation Mr. U.P. Sharma, the learned Advocate for the petitioner, has however, pointed out that the petitioner filed an appeal against the impugned order before the District Judge on 11-8-1981 (11-9-1981?) and the learned Judge has finally dismissed the appeal on 21-12-1981 on the ground that no such appeal lies. It is not disputed that if the time during which the appeal was pending before the District Court is excluded, the present revisional application would be perfectly within time. Mr. Sharma has urged that the petitioner preferred and prosecute the appeal before the District Court in good faith and with due diligence and, therefore, the time spent in pursuing the appeal is to be excluded in computing the period of limitation for this revision. It appears from the judgment of the learned District Judge that he finally dismissed the appeal, not on merits but, on the ground that an order refusing to grant an interim injunction ex parte and directing notice of the application for injunction to be issued lo the opposite party is not appealable and for this the learned Judge has relied on a single Judge decision of the Punjab High Court in Iqbal Singh v. Chanan Singh (AIR 1966 Punj 165). There are, however, direct decisions of a Division Bench of the Patna High Court in Shyam Behari Singh v. Biseswar Dayal Singh (AIR 1924 Pat 713), of a Division Bench of the Calcutta High Court in Sarju Prasad Singh v. Gangaprasad Shah (AIR 1951 Cal 446) and also a single Judge deci?sion of the Calcutta High Court in ) to which the attention of the learned District Judge does not ap?pear to have been drawn and which are to the effect that an appeal from such order lies and is perfectly maintainable. None of these authorities noted above are binding on the Courts in Sikkim and there appears to be no decision of this Court or of the Supreme Court on this point. Therefore, even assuming that the learned District Judge was right in fol?lowing the Punjab decision referred to hereinabove and in holding the appeal to be not maintainable, the petitioner and/or his learned counsel who filed the appeal before the District Court cannot be denied to have acted in good faith and with due diligence, if they acted under impression that such an appeal is maintainable, that being the view of at least two other High Courts, noted here?inabove. In fact Mr. Sharma who has appeared for the petitioner before me, has frankly confessed that the appeal was filed by him in the District Court on behalf of the petitioner under such im?pression as to its maintainability. This not having been disputed by Mr. Aggarwal, the learned Advocate for the Re?spondent, I need not wait for any affidavit to that effect either from the peti?tioner or from Mr. Sharma. Given good faith and due diligence for prosecuting such a civil proceeding between the same parties for the same relief, the time spent for the prosecution for such a proceeding should be excluded when such proceeding fails for bona fide mis?take of law or procedure.

(3.) If it were necessary for me to de?cide the question, as to whether the appeal filed before the District Court was maintainable, I might have with respect, agreed with the view of the Patna and the Calcutta High Courts holding such appeal to be maintainable and dissented, with equal respect, from the Punjab decision and the decision of the Allaha?bad High Court which was followed in that Punjab case, holding against the maintainability of such an appeal. For I would have thought that all orders granting or refusing injunction, whether ex parte or after notice, are ordered under either R.1 or R.2 of O.39, except when injunctions are granted under in?herent powers, and R.3 only seeks to regulate the mode in which the jurisdiction under Rr.1 and 2 is to be exercised. I would have thought that when a party makes an application for an immediate and ex parte order of injunction and the Court refuses to grant such an injunc?tion and instead issues notice of the ap?plication to the opposite party, the order of refusal would be an order under R.1 or R.2, as the case may be and not under R.3 and hence appealable under O.43, R.1(r). But since the order of the District Judge dismissing the appeal has not been challenged before me in any way and Mr. Sharma, far from assailing that order, is very much relying thereon to justify exclusion of the period spent in that appeal, I need not go into that question in this revisional proceeding which is directed solely against the order of the Civil Judge refusing ad interim injunction ex parte and issuing notice to the respondent-defendant.