Kunjan Bhaskaran vs Ambika

Balagangadharan Nair, J.—The subject of this revision is an ex-parte order of "Injunction and notice" passed by the Munsiff''s Court at the instance of the Plaintiff-Respondent, restraining the Defendant-Petitioner from trespassing upon item 1 in the plaint. The Respondent challenged the maintainability of the revision, contending that an appeal alone will lie from the order to the District Court-even if the Petitioner does not choose to appear in the trial court in answer to the notice and contest the interim order-while the Petitioner asserted that the order is not appealable and that a revision is his only remedy. That is the sole question in this revision.

Order 39, Code of Civil Procedure, deals with temporary injunctions and by Rules 1 and 2 empowers the court to issue orders of injunction under the circumstances specified therein. Rule 3 provides that before granting an injunction the court shall direct notice of the application to be given to the opposite party except where it appears that the object of granting the injunction would be defeated by the delay. The proviso to Rule 3, introduced by the recent Amendment Act 104 of 1976, lays down that the court has to record its reason for issuing an injunction without giving notice to the opposite party and that it has also to require the applicant to take the steps specified in clause (a) (i) to (iii) and clause (b). Skipping over Rule 3A which is not relevant, Rule 4 entitles any party dissatisfied with the order of injunction to get it discharged or varied or set aside by the court. The only other provision that falls to be noticed is Order 43, Rule 1(r) which allows appeal to be filed from an order, so far as material, under Rule 1, Rule 2 or Rule 4 of Order 39.

The Petitioner contends that the order of injunction having been passed without notice to him, it fell within Rule 3 of Order 39 and was therefore unappealable under Order 43, Rule 1(r) which provides for appeals only from orders under Rules 1, 2 and 4 of Order 39. There is no force in this contention. Now Rule 1 of Order 39 - in this case the injunction is under Rule 1(c) - provides for the grant of an injunction "until the disposal of the suit or until further orders". Likewise Rule 2(2) lays down that injunction may be granted "on such terms as to the duration of the injunction", etc. The two rules therefore contemplate interim orders of injunction enurable until the disposal of the suit or until further orders. Whether an orders of injunction is to operate only till cause is shown by the opposite party against it or whether it is to remain in force till the disposal of the suit, it is nonetheless an orders of temporary injunction within Rule 1 or 2 of Order 39. When the court issues an order of injunction and notice to the opposite party as in this case it is really passing an order until further orders falling squarely within Order 39, Rule 1 and therefore appealable under Order 43(1)(r). Order 43(1)(r) itself does not say that appeals shall lie only from final orders and an ex-parte order is as much an order of injunction as the final order under Order 39. Order 39, Rule 3 on which counsel for the Petitioner based his argument does not provide for orders of injunction; it lays down only a rule of procedure under which the court might dispense with the initial notice before issuing an order of injunction. The order of injunction, whether interim or final, is therefore an order falling within Rule 1 or 2 of Order 39 and therefore appealable under Order 43 (1) (r). Nor is the appealability taken away by the circumstance that Rule 4 of Order 39 enables the order of injunction to be discharged, varied or set aside on application made for that purpose, for two alternate remedies can co-exist with an option to the aggrieved party to invoke the one or the other - to apply under Rule 4 of Order 39 or to appeal under Order 43(1)(r). The provisions of the relevant rules lend no support to the Petitioner''s contention.

While counsel for the Petitioner could produce no authority in support of his contention, there is a long line of cases laying down that interim orders of injunction are appealable. In Anthonimuthu Nadar v. Calayan Nadar 1053 KLT 334, appeals filed by Defendants from ex-parte orders of injunction issued by the Munsiff''s Court restraining them from entering upon suit properties, were returned by the District Court in the view that the orders were unappealable. On revisions by the Defendant, the Travancore-Cochin High Court held that orders of injunction passed under Rule 1 or 2 of Order 39 whether passed with or without notice are appealable under Order 43 (1) (r) and accordingly directed the District Judge to entertain and dispose of the appeals on the merits. The court followed an earlier unreported decision and AIR 1933 282 (Lahore) , which had taken the same view. I do not think it necessary to list all the decisions that have laid down this proposition; it is enough to refer to Zila Parishad, Budaun and Others Vs. Brahma Rishi Sharma, , which contains a full review of the earlier cases including 1953 KLT 334 and AIR 1933 282 (Lahore) . The Full Bench approved an earlier decision of the same High Court in L.D. Meston School Society v. Kashi Nath AIR 1951 Allahabad 558, and overruled the contrary decision in Raja Deo Singh v. Shambho Krishna Narain(5). These various cases support the view that I have expressed in the preceding paragraph. I reject the Petitioner''s contention.

While it is thus clear that the Petitioner could have appealed from the order to the District Court, a question still arises whether a revision is incompetent to the High Court. Before the Amendment Act 104 of 1976, Section 115, CPC prohibited revisions from cases decided by subordinate courts only if no appeal lay to the High Court, whether by way of first or second appeal; in other words the mere fact that a decision was appealable to a court other than the High Court was no bar to the exercise of the power u/s 115, through it would be for the High Court to consider whether it would exercise its discretion in favour of interference where another remedy was open to the party. And as a general rule it would not be so exercised. The position now is entirely different for Sub-section (2) of Section 115, introduced by the Amendment Act specifically provides.

The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.

As an appeal lies from the order to the District Court the revision to this Court is thus excluded.

I dismiss the revision with costs.