Kamalendu Chanda vs Dilip Kumar Biswas

S.M. Guha, J.—This application for revision is directed against the order dated 22.1. 81 by the Munsif, 2nd Court, Alipore, in T.S. No. 284 of 1978 which was instituted by the petitioner for eviction against the tenant, Opposite Party. On 22.1.81 the opposite party moved an application under Or 39 R. 1 & 2 read with section 151 C. P. Code praying for temporary injunction for preventing the petitioner his men etc. from interfering with the supply of electricity to his flat or preventing the Opposite Party''s access to the Main Meter or the Main Switch meant for his flat for effecting repairs and/or restoring electricity by raising partition and/or otherwise, and/or pass an ad interim injunction order in such term till the disposal of the petition. By the impugned order the learned Munsif issued a show cause notice and granted an order for maintaining status quo in respect of electric meter and main Switch meant for Opposite Party''s flat till the disposal of the injunction petition.

Before the receipt of the notice to show cause on 29.1.81 on receipt of a registered letter from Sri S. K. Banerjee, Advocate the petitioner came to know of all these facts and on 3.2.81 moved this Court in revision against the said order of status quo.

Mr. J. M. De, the learned Advocate for the O. P. challenges the very maintainability of the application for revision. According to him an order of ad interim injunction is passed under Rules 1 and 2 Or. 39, as such it is an appealable order.

In reply it is pointed out by Mr. Mukherjee that the order of maintaining status quo was passed under Or 39 R 3 read with the proviso and under Order 43 no appeal against such order has been provided for. So, according to him the remedy is to move the High Court in revision.

Is an ad interim order of injuction passed under Order 39 Rule 3 ? Order 39 Rule 3 Prior to its amendment in 1976 provided that "the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party". Rule 3 as it stood before amendment had never been taken to constitute the source of Court''s power to grant exparte order of injunction. Rule 3 deals with the stage prior to the passing of an order under Rule 1 or 2 of Order 39. The proviso added by the amendment of 1976 requires certain conditions to be compiled with in the event of an exparte order of injunction being granted. Under Rule 3 the Court is required to consider and arrive at a decision whether or not it will grant an exparte order of injunction without a notice to the opposite party. It is abundantly clear that Rule 3 prescribes the ''mode'' for the grant of ad interim injunction with or without notice but the power of the Court to issue such order flows from Rule 1 or 2 of Or 39.

Thus while granting a temporary injunction the Court acts either under clause (c) of Section 94 read with Rules 1 and 2 Or 39 of the C. P. Code or in its exercise of its inherent power u/s 151 of the Act. In Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, the Supreme Court emphasised that the Court derives its power or jurisdiction to grant temporary injunction from either of these two sources. Such power includes of course, the power to grant or refuse an ad interim injunction. Such order would be deemed to be an order under R 1 or 2 Or 39, and as such appealable under Or 43 Rule 1(r). A Division Bench of this Court in the case of Saraju Prashad Singh Vs. Gangaprosad Shah and Others, held that an order of injunction even for a limited period was clearly final and as such appealable under Or 43 R 1(r). This Bench decision was followed by Salil Kumar Datta, J. in Motilal Singh vs. Shib Chandra Bose, reported in 75 CWN 233 ; and N. C. Talukdar, J. in Chira Ranjan Das vs. Electric Lamp Manufacturers, reported in AIR 74 Cal. 119.

The views of this Court have been shared by several other High Courts. A Division Bench of the Allahabad High Court in L.D. Meston School Society Vs. Kashi Nath Misra, holds that whenever a Court passes an ex parte order of injunction, it is to be construed as an order passed under R 1 or 2 and as such appeal lies under Or 43 r. 1 (r). The Full Bench of that High Court in Zila Parishad Budaun vs. Brahma Rishi Sharma reported in AIR 1976 All 376 also held that an ex parte order issuing temporary injunction under Or 39 R1 and 2 is appealable under Or 43 R 1 (r).

In Chhaganlal Vs. Niwasdas Goyal, the High Court of Madhya Pradesh observes that when an order of temporary injunction is issued ex parte under Or 39 R 3 C. P. C. without notice to opposite party that order is nonetheless an order under R 1 or 2 Or 39 and would as such be appealable under Or 43 R 1 (r).

In SK. Jusa Vs. Ganpat Dagdu Gire and Others, --the Bombay High Court was also of the same view, of course it was a single Bench decision.

In Abdul Shukoor Sahib vs. Uma Chander & Ors., reported in AIR 1976 Mad 350 a Division Bench of the Madras High Court has no doubt taken a contrary view. But having regard to the views of the different High Courts, including that of ours it can be safely held that an exparte order either granting or refusing ad interim injunction is appealable. Mr. Mukherjee contends that these decisions arose out of the cases before the amendment made in 1976. It has already been pointed out that there has been no material change in the section by adding a proviso thereto. The proviso to R 3 does not alter the real nature or the substantive part thereof. The power to grant or refuse ad interim injunction flows from R 1 or 2 of Or 39, and the proviso to R 3 in no way has taken away that power.

In the result, the application for revision fails and the rule is discharged.

There would be no order as to costs.