Abdul Shukoor Sahib vs Umachander and others

Ramaprasada Rao, J.—The subject-matter in this Civil Revision Petition presents at once an inconvenient and a provocative situation. It is

inconvenient for the reason that many of the High Courts other than our High Court excepting a single Judge of our court have taken a view

different from the one we intend taking and it is provocative because this case is responsible for us to give notice to the Advocate''s Association, to

the Bar Association and to the Women Lawyers'' Association and on the top of its request a senior counsel like Mr. K. Parasaran to be our

Amicus curiae to assist us to solve out certain apparent riddles which the case confronts us with.

The facts are very simple. The petitioner-plaintiff filed O.S. No. 518 of 1975 on the file of the Court of the District Munsif, Tirupathur, North

Arcot District and contemporaneously filed I.A. No. 2382 of 1975 and sought for an ad interim temporary injunction against the respondent-

defendants or their agents restraining them from interfering with his peaceful possession and enjoyment of the suit property. On 24-11-1975, the

learned District Munsif passed an order to the following effect:

An interim injunction and notice by 20-12-1975"". The respondents took up the matter in appeal in C. M. A. No. 72 of 1975 on the file of the

Court of the Subordinate Judge of Tirupathur and filed I.A. No. 595 of 1975 therein seeking for an interim suspension of the order of interim

injunction passed by the learned District Munsif. The learned Subordinate Judge, on the 29th November 1975 passed an order to the effect that

the interim injunction granted in I.A. No. 2382 of 1974 in O.S. No. 518 of 1975 dated 24-11-1975 by the District Munsif, Tirupathur, be

suspended. As against this, the present Civil Revision Petition has been filed by the plaintiff-petitioner. When the case was set for admission before

our learned brother V. Ramaswami, J., the judgment of Maharajan, J., in Mangai Achi Vs. S. Asokan and Another, ) was brought to his notice.

The learned Judge made the following observations.

There are a number of petitions pending disposal which are against the interim orders made by the lower courts.

When a District Munsif or an Appellate Authority grants an interim ex parte order, without seeking to vacate that order by filing an application for

the same, the parties are resorting to file appeals and revisions against the ad interim ex parte order itself, on the basis of a decision of this Court

given by Maharajan, J., in Mangai Achi Vs. S. Asokan and Another, .

The question whether an appeal or a revision is maintainable against the ex parte interim order, when there is an alternative remedy of vacating it by

filing an application before the same court, has to be authoritatively decided by a Bench. Papers may, therefore, be placed before My Lord the

Chief Justice for orders.

It is in this context that the civil revision petition is set before us for a decision.

Mr. Sivasubramanian appearing for Mr. Gandhi raised a preliminary objection that the learned Subordinate Judge of Tirupathur as an appellate

Court did not have the requisite jurisdiction to take on its file the appeal C. M. A. No. 72 of 1975 and in consequence the interlocutory order

passed by him suspending the ad interim injunction granted by the learned District Munsif is ultra virus and without jurisdiction. He would try to

distinguish the case before Maharajan, J., referred to above and after referring to the fundamentals governing the issuance of an interim injunction,

or for that matter any order by a Civil Court and with particular reference to the provisions in the CPC itself, the learned counsel will say that the

appeal itself is not maintainable, and therefore, the order sought to be challenged in this Civil Revision Petition ought to be set aside as being

passed without jurisdiction. As the question raised certain, as already stated, inconvenient and provocative problems we sought the assistance of

Mr. Parasaran, senior counsel to assist us as Amicus Curiae. We also thought it fit to give notice to the various Bar Associations and before us,

besides the counsel appearing on either side in the civil revision petition, Mr. N.C. Raghavachari, and Mr. Vedantam Srinivasan also made their

representations. Excepting for the hesitant argument of Mr. Vendantam Srinivasan and the vociferous assertions of Mr. R.S. Venkatachari.

everyone before us would say that both on the ground of expediency and on the established practice and also on the foot that the CPC which has

set a procedure, undoubtedly makes a dichotomy between the orders which are purely interlocutory in the sense they are not grounded on reasons

given by the judicial authority concerned and those which are orders passed on stated hypothesis and justifiable grounds. It is in this context

learned counsel for the petitioner and the other members of the bar would say that even though the text of Order 43, Rule 1 (r) of CPC enables the

filing of an appeal against an order issued by a Civil Court, under Order 39, Rule 1 or 2, yet, such appellate provisions could only be invoked in

cases where the judicial authority issuing an order of temporary injunction has applied its mind, stated his grounds and set forth its reasons on

which such an order of injunction is based. Mr. Venkatachari, on the other hand, relying upon a Full Bench decision of the Allahabad High Court in

Zila Parishad, Budaun and Others Vs. Brahma Rishi Sharma, as also the judgment of our Court (that of Maharajan. J., in Mangai Achi Vs. S.

Asokan and Another, would say that on a prima facie reading of the language of Order 43, Rule 1 (r), the appeal is competent even as against an

unreasoned order of a Civil Court when it says such an order is under the purported exercise of judicial powers under Order 39, Rule 1, or 2,

Civil Procedure Code.

This leads us to an investigation into the fundamentals as to what is a judgment and what is an order and what is decree.

Section 2 (9) of the CPC defines ''Judgment'' as meaning a statement given by the Judge of the grounds of a decree or order. Section 2 (14)

says that an order means the formal expression of any decision of a Civil Court which is not a decree. Section 2 (2) of the Code says that a decree

means the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with

regard to all or any of the matters in controversy in the suit and may be either preliminary or final. If, therefore, a court has to interpret the real

meaning and purport of an order, it has to look into Section 2 (9) and 2(14) to find out what possibly could be an order which could be

pronounced by a Civil Court in a Court of law. The order is not to be understood as a mandate in the layman''s sense, but it should be one which

should be taken to be meaningful and purposeful besides being one which tantamounts to the formal expression of any decision of a Civil Court

and which decision again is based on certain intelligible grounds. This appears to be so from decided cases as well. In M. Dodla Malliah and

Others Vs. The State of Andhra Pradesh and Land Acquisition Officer, Warangal, Venkatesam, J. speaking for the Bench after referring to the

above statutory provisions observed as follows:

These three definitions under the CPC make it manifest that both a decree as well as an order are formal expressions of any decision of a Civil

Court. But a decree conclusively determines rights of the parties which words do not occur in the definition of the word ''order''.

The Supreme Court in Vidyacharan Shukla Vs. Khubchand Baghel and Others, ) had occasion to consider, not in a position in pari materia but a

similar provision, the Representation of the People Act, 1951, and Subba Rao, J., as he then was, after noticing that the provisions of the CPC are

applicable to trials of election petition before the statutory Tribunals constituted under the said Act stated thus:

There is no provision in the Act defining how the decision should be given. It could not have been the intention of the Legislature that the Tribunal

need not give the statement of reasons for its decision it is the duty of the Election Tribunal to give a statement of reasons for its decision.

It is, therefore, fairly clear to us that any order passed by a judicial authority to which the CPC applies should not ordinarily make it an ""order"",

without basing it on intelligible grounds or reasons. If no such data is given for the passing of such an order, or it does not ex facie appear in the

order itself, then it would cease to be a formal expression of a decision which is the primordial garb to clothe the mandate of a Court with the

badge of an ""order"". With this background, we shall now proceed to analyse Order 39, Rule 1, CPC with which we are concerned in this Civil

Revision Petition. Order 39, Rule 1 states thus:

Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution

of a decree, or,

(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant

a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging alienation,

sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.

Two eventualities are contemplated in this clause under which courts could grant a temporary injunction. Order 39, Rule 1 (a) speaks of a

subsisting dispute over a property and the property is in danger of being wasted, damaged or alienated by any party to the suit etc. Order 39, Rule

1 (b) is preventive in scope and contemplates quia timet action. In a case where the plaintiff alleges that the defendant threatens or intends to

remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act

etc. Order 39, Rule 2 deals with the grant of injunctions to restrain repetition or continuance of breach. We are, for the present, not concerned

with the text of Order 39, Rule 2, Civil Procedure Code. The language deployed in Order 39, Rule 1, gives us the impression that the procedural

norms prescribed therein, which would entail the grant of temporary or ad interim injunction, could be broadly pigeonholed in two distinct and

separate heads. The first broad division is that such ad interim injunction could be granted by the Court until the disposal of the suit. The second

division is that such ad interim injunction could be granted until further orders. This distinction made in the text of Order 39, Rule 1 has to be given

effect to while the Civil Court exercises jurisdiction either under Order 39, Rule 1 or under the other provisions reliable thereto including the

provisions relating to the vacating of such orders and appeals against such orders. The very fact that the Court finally determines that an interim

injunction should be issued until the disposal of the suit verily indicates its mind to a large extent, and conclusively determines the entitlement of the

plaintiff to such a grant and it would thus mean that there has been an application of the mind of the Court to the subject before it, when it made

such a grant until the disposal of the suit. Such a more or less conclusive determination of the right of the plaintiff or the other party in the matter of

the grant of an injunction until the disposal of the suit, obviously involves the hearing of both the sides as otherwise the principles of natural justice

also would be affected. Therefore, in our view if any order under Order 39, Rule 1 is made in and by which a temporary injunction is granted until

the disposal of the suit, that by itself presupposes that there was a hearing on the subject-matter and both parties were before the Court at or about

the time when such an order was made. The second broad division which we have referred to concerns itself with the issuance of such temporary

injunctions until further orders. The severely of such injunction is lesser in scope than the one which is granted by the Court while exercising

jurisdiction under the first part of Order 39, Rule 1 (b). In the second part where an ad interim injunction is issued until further orders, as in this

case, it cannot be said that the order was issued after the court has formally expressed its decision on the question, but it is reasonable to assume

that such an ad interim injunction and notice which is usually issued by our Courts are made on a prima facie reading of the plaint and the affidavit

which are the only documents available to the Court for issuance of such a temporary order. In such a case, the question which arises immediately

for consideration is, whether an ad interim injunction issued under the second head as above would also be subject to the same treatment in the

judicial process and more particularly, in the matter of the invocation of the appellate jurisdiction of the higher hierarchy of Courts, which are

contemplated under the CPC itself.

Order 43, R. 1, Civil Procedure Code, is the relative appellate provision with which we are concerned. Order 43, Civil Procedure Code,

dealing with the appeals from orders, provides in R. 1 (r), that an appeal shall lie from an order under Rule 1, Rule 2, Rule 4 or Rule 10 of Order

The inhered concept in an appeal is to provide to the Appellate Court an opportunity to affirm or reverse the orders or judgments of the

Courts below. Such orders should necessarily be formal expressions of a decision which should be based on grounds and reasons. Even in

affirming judgments of the appellate Courts, it becomes sometimes necessary for it, unless otherwise not required to state the reasons for such

affordance of the orders and judgments of the courts below. It should appear on the face of the appellate order that it has considered the reasons

given by the lower court and in its opinion, there is no compelling reason to differ from it. On the other hand, if it is a reversing judgment it follows

that the appellate court while exercising its appellate jurisdiction should not only substantiate its decision by laying threadbare its own hypothesis on

which it decides but also give adequate and sufficient reasons to differ from the findings of the trial Court and the reasons given by it. These are the

normal features in an appellate judgment. Therefore, when the appellate court is asked to consider the non-speaking order and an order not based

on any grounds and in particular, an order which is not even supported by any data, then the appellate court should invariably convert itself into a

trial court and hear both the parties and admit evidence and render its decision for the first time on merits. Order 41, Rule 27 (1) and 1(2) read as

follows:

(1) The parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the Appellate Court but if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the party seeking to adduce additional evidence satisfies the Appellate Court that such evidence notwithstanding the exercise of due diligence,

was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed, or

(c) the Appellate Court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment or for any other

substantial cause, the appellate Court may allow such evidence or document to be produced or witness to be examined.

(2) Where additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission.

Order 41, Rule 27 (1) (a) and (b) are clear and clinching. But could it be said that when an appellate court is seized of a subject like the one under

examination, it could require any document to be produced or any witness to be examined to enable it to pronounce judgment or could do so for

any other substantial cause in cases where it is examining a non-speaking, non-reasoned and groundless order. We are of the view that it cannot.

This is so because Order 41, Rule 27 (2) provides the key for the admission of such additional evidence by appellate courts. It says that where

additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission. We are unable to

comprehend that in an appeal like the one under consideration what reason the appellate court can possibly give compelling the parties to produce

either oral or documentary evidence. We shall advert to this at a latter stage. A fortiori in a case where the order of the trial court does not furnish

any grounds or a decision on which it is based, then in our view, calling for additional evidence either oral or documentary, is not provided for

either in Section 107 or Order 41, Rule 27, Civil Procedure Code. An order such as ""ad interim injunction and notice does not come within the

purview of the first division, which we have made in the text of Order 39, Rule 1 (b). It squarely comes under the second division which we

thought of. So, it is purely an order which is a step in aid to a reasoned order which has to be passed after notice and after hearing both parties.

Therefore, even though Order 43, Rule 1, expressly refers to an order made in Order 39, Rule 1 as an appeasable order nevertheless that order

should be a decision based on some grounds and not a mere preliminary order for the maintenance of the status quo between the parties.

It is in this light, the inbuilt safeguards in the infrastructure in O. 39, looms large. Inter alia Order 39, Rule 4 provides that an order for an

injunction may be discharged or varied or set aside by the Court on application made thereto by any party dissatisfied with such order.

This inbuilt safeguard in Order 39, Rule 4 by itself is indicative of the fact that a summary or a cursory interim injunction granted by the Courts

under the second part of O. 39, R. 1 (b) could easily be varied, discharged or set aside by the Court on an application made thereto by the

aggrieved party to whom invariably notice of such order is given. Though an ex part order of injunction prima facie projects a case of affection of

rights, yet it is not so grave at that stage because it is more or less a quia timet remedy which contemplates the maintenance of the status quo or the

forbearance from doing an act imminently prejudicial to the plaintiff who obtains the order. In such a case, the Court passes an ex parte order

which ensures preservation of existing rights until further orders or until finally adjudicated upon by it. So it appears to us that the invocation of the

jurisdiction of the appellate Court under Order 43, Rule 1 (r) at that stage would, be to allow a party not seriously injured to initiate legal action

contrary to the maxim-Actio non detour non damnificatus - An action is not given to him who is not injured. The injury should be an actionable

injury, otherwise, the party is non damnificatus and it is a case of damnum sine injuries. The formally affected party on receipt of the notice of the

injunction, can seek to vacate it or modify it under Order 39, Rule 4. This sub-clause to Order 39, Rule 4, introduced out of necessity and

therefore, has to be understood as having been introduced because it is necessary. Such a provision cannot be lightly ignored or hopped over so as

to seek umbrage under Order 43, Rule 1 (r) as it would be premature to do so besides being unnecessary. Therefore, the recourse to the appellate

court at that inchoate and imperfect stage with no evidence excepting the self-serving pleadings of the complaining party and with an order sans

reasons would not have been the intention of the Legislature, when it provided for an appeal under Order 43 Rule 1 (r) against orders made under

Order 39, Rule 1. In our view, such appeals are intended as against orders passed after hearing all parties and containing reasons and grounds for

the grant or refusal of such temporary injunctions and which grant or refusal damnifies or injures the affected party in the realistic sense. The Civil

Justice Committee referred to by Mr. Vedantam Srinivasan has made certain recommendations as early as 1926. They have pointed out the

reasons and the gravity involved in the grant of such ad interim injunctions. To quote would be better. (The Civil Rules of Practice and Circular

Orders Vol. I page 17).

It appears to us that interlocutory injunctions are, throughout India, granted much too freely and without sufficient care to impose terms... The

question whether such an order should be granted involved a great deal more than mere compliance with these conditions (laid down in Order 39)

it involves a certain amount both of law and common sense... Again we consider that a court which is not prepared to hear the defendant on an

application of this sort in a few days and which gives an ex parte injunction which it knows must continue for weeks is exercising its jurisdiction in a

highly dangerous manner. Such injunctions when granted at all should invariably be limited to hold good only until a specific and early date. By

early is meant for this purpose not a month but a week or less, i.e. a minimum time within which a defendant can come effectively before the Court

assuming that to get rid of the injunction he will be prepared to use the greatest expedition possible So far as comparatively junior officers are

concerned we are convinced that no great improvement will be effected in this matter unless they are made to appreciate that the granting of an ex

parte injunction is a serious responsibility; that having granted the injunction they are under a duty to lake the greatest pains to do everything

possible to protect the absent defendant.

Viewed in this background of such enlightened observations of the Civil Justice Committee made in 1926, it would be adding fuel to the fire if we

accede to the argument of Mr. R.S. Venkatachari that bare order such as ad interim injunction and notice is an appealable one within the meaning

of Order 43, Rule 1 (r). We are of the view, that Order 43, Rule 1 (r) could be invoked only in cases where the lower appellate Court after

hearing the affected party makes a decision within the meaning of Section 2 (9) and 2(14), CPC and so expresses itself formally so that its

reasoning and the grounds on which its decision is based could be scrutinized by the higher court.

Examining the precedents touching on this subject as well as those decisions which are analogous to the discussion in which we are in, we find a

bare groundless, reasonless order which is on the top of it an ex parte one can not be the subject matter of an appeal.

In Luis v. Luis, (1889) ILR 12 Mad 186 the question was whether an appeal lay against an order for issuance of a notice u/s 494 of the old

Code which is equivalent to Order 39, Rule 3. Civil Procedure Code. The learned Judges while negative the contention that an appeal would He

even as against such an order, made the following observations, which are very important for our purposes:

The order made by the Subordinate Judge was not the formal expression of his decision on the question, whether an injunction should be granted

or not"". A Division Bench of this Court which rendered the decision was aware that no appeal lay expressly to the appellate court against orders

passed u/s 494, old CPC equivalent to Order 39, Rule 3, CPC (1908). We are referring to this judgment only to point out that an appealable

order should be one which should be the formal expression of a decision of a court on the question. As the members of the Civil Justice Committee

have pointed out such matters ought not to be interpreted in a wooden way but should always be tempered and allowed by common-sense. Even

according to the Shorter Oxford English Dictionary a decision means, action of deciding (a context, question) etc. Obviously two parties are

required for a contest and two opinions should be available to decide a question While issuing an ad interim injunction ex parte, no such occasion

arises. The Federal Court in AIR 1939 74 (Federal Court) while deciding the question whether an order made by a Civil Court under Order 21,

Rule 66, CPC is an order or not as understood by the other provisions in the CPC itself, the Court said that such an order is not a judicial

adjudication of any question arising between the parties. Analogically in two decisions of our Court two learned Judges have taken the view that an

order u/s 9 (1) of the Madras Cultivating Tenants Act (Act 24 of 1956) will not take into its campus every decision and that the expression ""every

decision"" in Section 9 (2) of the Act, referred only to a final decision in regard to right of parties with reference to the dispute u/s 9 (1) and would

not include orders passed on interlocutory applications. To the same effect is the decision of our Court in Peria Maria Goundan v. Ramaswami

Gounder, (1962-1 Mad LJ 106).

After having proceeded thus, we can now conceive of the real position as to what should the appellate court do in such circumstances. We

have already touched upon this aspect and opined that the appellate Court cannot in the peculiar circumstances of this case invoke their jurisdiction

under Order 41, Rule 27 (c) and require the appellant or the respondent before it to produce any witness so as to enable it to pronounce a

judgment or call for the same for any other substantial cause. If they attempted to do so, as was done by Maharajan, J., in Mangai Achi Vs. S.

Asokan and Another, , it is a decision not contemplated in the Code at all. In an appeal against an interlocutory Order which is bereft of reason

and ground and cannot be characterised as a formal expression of a decision, the appellate Court is confronted with only the self-serving pleading

of the plaintiff, namely, the plaint and the affidavit in support of the application for the grant of an injunction. In our view, the appellate Court at that

particular time and in that situation need not call for additional evidence to enable it to give a judgment for it would tantamount to usurpation of the

duties of the trial Court which would ordinarily be obliged to entertain such evidence and pass a final order under the first part of Order 39, Rule 1

(b). In fact, a decision cited by Mr. R.S. Venkatachari, though, of course, is in his favour in so far as the conclusion therein is concerned, touches

upon this question. The learned Judges in that decision, namely, Chhaganlal v. Niwasdas , (AIR 1963 Madh Pra 298) observed as follows:

Where, however, an appeal against an interim order has been filed the appellate court will not be bound to apply its mind to all those matters which

the original court is bound to consider on cause shown by the party affected by ad interim order... I do not feel inclined in this case to go into the

merits of the various questions to which the trial Court will be bound to apply its mind before arriving at a decision whether the order of temporary

injunction should continue during the pendency of the suit.

These observations are certainly pointers to our view that it is neither just. convenient or expedient for the appellate Court to sit in the armchair of

the trial court and call for evidence and adjudicate the matter, as if the subject-matter has come up before it for the first time. Order 20, Rule 4,

CPC dealing with the judgments and decree equally provides necessary intelligence which might be taken as guideline for adoption in such matters.

Order 20, Rule 4, Clause 2, says:

Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reason for such

decision.

We have already referred to Section 2 (9) which says that judgment means the statement given by the Judge of the grounds of a decree or order.

Therefore, it appears to us that even if an order is passed, it is mandatory on the part of The Court making that ""order to decide the points for

determination and he should give the reason for his decision. When this is absent; we fail to see how an appeal can lie against such an order.

The anomalous result, which is likely to flow from the acceptance of contention of the counsel for the respondent can easily be illustrated.

Supposing a suit is filed by X against A, B, C and D and X secures an ex parte ad interim injunction with notice to A, B, C, and D. If A, B, C, and

D, are represented by different counsel it is possible that A and B might invoke Order 39, Rule 4 C.P.C. and seek to vacate the interim order of

injunction and C and D might file an appeal against the same order in the appellate Court. There is every possibility of conflicting orders being

passed by these two judicial functionaries. In order to secure consistency and primarily to harmonies and reconcile the situation, it is necessary to

find a solution. In such situations, the manifest contradiction of the apparent purpose of the enactment should be avoided. Though its scriptum est is

the first principle of interpretation, yet if the application of the text in an enactment, when read in conjunction with other provisions leads to a result

so unreasonable that it is self-evident that the Legislature could not have meant what it has said, then it is the duty of the Court to reconcile and

harmonies the situation. The CPC being a codified law regarding procedure and being comprehensive enough, must be taken and read as a whole

and its provisions and the intent and object of such provisions upheld. ""Division of a statute into parts or chapters is for purposes of convenience.

The object of such division is not that each part or chapter should be read independently of each other as a complete code by itself"". In order to

set at rest such glaring anomalies the only solution appears to be to hold that no appeal will lie against an ex parte ad interim injunction but that the

specific remedy available in Order 39, Rule 4, CPC has to be availed of by the interdicted party so that a final reasoned order could be obtained in

the trial court itself against which the Code has provided an obvious appeal under Order 43, Rule 1 (r) Civil Procedure Code.

We shall now take up the serious contention of Mr. R.S. Venkatachari, who, after referring to the catena of decisions, relied upon the decision

in Mangai Achi Vs. S. Asokan and Another, and took us through the Full Bench decision of the Allahabad High Court in Zila Parishad, Budaun

and Others Vs. Brahma Rishi Sharma, . We may point out at once that the occasion for the Full Bench to decide on the subject was that there was

difference of opinion between the two Division Benches of that Court. In Raja Deo Singh v. Kr. Shambho Krishna Narain, ( 1960 All LJ 124) a

Division Bench of the Allahabad High Court took the view that no appeal lay against such interlocutory and reasonless order made under Order

39, Rule 1, or even under Order 43, Rule 1 (r) C.P.C. The Full Bench said that the language and the object of R. 1 (r) of O. 43 and the scheme of

Rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte order of injunction. Broadly stated this proposition is prima facie right.

But when it comes to a question of considering the order, which is not an equation of a decision made by a Civil Court, which decision has to be

founded on reason, then the problem becomes somewhat baffling, and it is, therefore, the question arises whether a literal compliance of the

appellate provision under Order 43, Rule 1, alone is the remedy available under the Act or is there anything else available in the alternative. No

doubt, if alternative provisions of procedure are available in the Code of Civil Procedure, it is open to a litigant to adopt one or the other provided

for. But read in conjunction with the other provision of the CPC and the nature and content of a non-speaking order, which is passed by a Civil

Court and having regard to the practical difficulties to a litigant, the enormous delay in the disposal of appeals, the prohibited costs involved in the

invocation of such appellate provisions and the danger inhered in such ex parte injunctions granted sometimes without care and without application

of commonsense, are all the factors which enter into the computation to find whether Order 39, Rule 4 of the CPC is not the only remedy in cases

where such orders of ad interim injunctions were passed by the trial Court with contemporaneous notice to the other side. We are of the view,

respectfully differing from Maharajan, J., whose judgment we shall presently consider, that in cases where such interim orders or ex parte orders

are not founded on any reason and they cannot reasonably be characterised as formal expressions of a decision made by a Judge and which

decision in turn is not based upon intelligible and acceptable grounds, the remedy available to a party affected is under Order 39, Rule 4 and not

by invoking the appellate provision under Order 43, Rule 1 (r). Civil Procedure Code. In a case where there is a reasoned judgment after hearing

the parties and a decision based on various grounds is made one way or the other by the trial Court, then obviously that would be an order which

would come under the first division which we have set out above in our preface on Order 39, Rule 1 and it would be an appealable order.

One other factor, which prompts us to accept the argument of Mr. Parasaran, who assisted Us to a great deal in this case, is the long standing

practice prevailing in this court. In Mangai Achi Vs. S. Asokan and Another, though Maharajan. J., followed the Full Bench of the Allahabad High

Court, he allowed the parties to let in evidence by affidavits and examined the subject matter by himself as if he was a trial Court and ultimately

disposed of the appeal. We find in the course of his judgment that the parties in the appellate stage have filed affidavits setting forth all the relevant

facts and the respondent filed counter affidavits in which he does not dispute the truth of such facts. Therefore, the situation before Maharajan, J.

was this. Though the parties objected to the maintainability of the appeal, yet they would furnish and feed the appeal with relevant material to

enable it to decide whether an injunction should be granted or not as if it was a trial court. We have already expressed the view that such an

invitation to the parties to file affidavits or to bring in fresh evidence at the appellate stage when the trial Court itself did not give such an opportunity

to the parties is not contemplated under the provisions of the Code of Civil Procedure. Further, equity demands that a fuller opportunity should be

given to the parties and it invariably happens that the appellate courts which are in seisin or small appeals cannot afford to give larger time to the

litigants but take only affidavit evidence and dispose of the matter. This again might, in some cases, lead to miscarriage of justice.

For all the reasons stated above and also for the reason that longstanding practice in a chartered High Court cannot be lightly disturbed and set

at naught. We are of the view that such orders which as we characterised above are without reason and are not based on any grounds can only be

the subject-matter of challenge under Order 39, Rule 4 and cannot be the subject-matter of appeal under Order 43, Rule 1, Civil Procedure

Code.

Learned counsel, who appeared before us represented to us as a whole the Bar Associations in our High Court and they have in one voice

said that no such practice existed in the past. No one including Mr. R.S. Venkatachari brought to us any decision of our Court, which agreed with

the maintainability of such appeals or by the filing of such appeals. In those circumstances, the well-known principle cursus curiae would apply. In

the words of the learned Chief Justice in Thondam Annamalai Mudali Vs. Tiruttani Ramasami Mudali and Others, that it will not be desirable to

depart from this long course of decisions and upset what was regarded in the presidency as a settled cursus curiae for over 50 years. A more

telling pronouncement is found in The Commissioner of Income Tax, Bombay City Vs. Shri R.H. Pandi, Managing Trustees of Trust, Bombay,

There, the Supreme Court was considering a practice of that Court. The Supreme Court said that cursus curiae est lex curiae, i.e., the practice of

the Court is the law of the Court and where a practice has existed, it is convenient to adhere to it because it is the practice. Having regard to such

an established practice in the past and as no decision of our Court has been brought to our notice, which enabled the filing of appeals under Order

43, Rule 1, against interlocutory orders not based on any grounds and not being a formal expression of decision, we are unable to follow the

decision of the Allahabad High Court and which in turn was referred to by Maharajan, J., in Mangai Achi Vs. S. Asokan and Another,

We, therefore, find that the order of the Court below, which issued an order directing interim suspension of the order of the trial Court in I. A.

No. 595 of 1975 in C. M. A. No. 72 of 1975, is an order which is absolutely without jurisdiction. We, therefore, set aside the same u/s 115 C. P.

C.

The Civil Revision Petition is allowed. There will be no order as to costs.

We express our thanks to Mr. Parasaran, who assisted us as Amicus Curiae and, who hag taken a great interest in the subject matter and to

Mr. Narayanaswamy, President of the Advocates'' Association, Mr. Shrinivasavarada chari, representing the Bar Association, Mrs. Radha

Gopalan of the Women Lawyers'' Association, Mr. N.C. Rathavachari and Mr. Vendantam Srinivasan, who assisted us to solve the inconvenience

as well as the provocation given to us. Before leaving this matter, we would like to make some practical suggestions. We have already accepted a

portion of the report of the Civil Justice Committee. Even in 1926, it was desired that such ad interim injunction should not stand, unless affirmed

or dissolved, for more than a week. It is, therefore, desirable that the trial Courts, which pass such orders should not give more than a week''s time

to enable the other side to appear and if the other side files an application under Order 39, Rule 4, CPC to vacate or modify the same, such

applications also have to be heard within two weeks, thereafter. The entire matter should be settled within a month. Otherwise, the litigants would

be frustrated and the hope that the poor litigant has in a court of law will become a dupe. We, therefore, suggest that in all such situations, the

Courts which are guided by expediency and avoidance of delay should dispose of such applications at least within 30 days from the date when

they issue such ad interim injunction orders. In the instant case, we direct the District Munsif to take up the application I. A. No. 2382 of 1975 on

his file and dispose of the same by 15th April, 1976. The appeal C. M. A. No. 72 of 1975 on the file of the Subordinate Judge is to be

automatically and should be deemed to have been dismissed.