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Judgment
In this Appeal from Order, a short point of maintainability,
whether the order passed below application for interim injunction
made under Order XXXIX (O.39) Rules 1 and 2 of the Code of
Civil Procedure,1908 (hereinafter referred to as "the CPC") in
Regular Civil Appeal filed under Order XLI (O.41) of the CPC is
appealable under Order XLIII (O.43) Rule (1) sub-rule (r) of the
CPC., is raised. It is purely a procedural issue.
In the present matter, the judgment and decree passed by
the trial Court in the Suit is challenged in Regular Civil Appeal
filed under Order 41 of the CPC. The Application for interim
injunction was preferred pending Appeal. Under Order 39 Rules 1 and 2 of the CPC, the Court has power to grant temporary
injunction. Therefore, this interim application for injunction which
is called generally in District Judiciary as Exhibit 5 was made in
Regular Civil Appeal filed under Order 41 of the CPC. The said
application was allowed by the First Appellate Court; hence, this
is the Appeal under Order 43 of the CPC.
Mr.Anturkar, the learned Senior Counsel, has submitted
that the interim order in appeal is not incorporated in the list of
Rule 1 of the Order 43 of the CPC, hence, this Appeal is not
maintainable under the said Order. In support of his
submissions, he relied on the judgments of two Division Benches
of this Court in the cases of Krishna Yeshwant Shirodkar vs.
Subhash Krishna Patil reported in 1988 Mh.L.J.327 and also
in the case of Robert Punaji Salvi vs. Bombay Diocesan Trust
Association Pvt.Ltd . reported in 1995 (2) Mh.L.J.679. He has
further submitted that the learned Singe Judge of this Court in
the case of Shobha Dinesh Supare and another vs. Dinesh
Namdeorao Supare reported in 1993 (1) Mh. L.J 910 has held
that if the order of temporary injunction is passed under Order 43
Rule 1 of the CPC, then such order is not appealable under the
provisions of Section 104 (2) of the CPC. He has fairly pointed
out that the learned Single Judge of this Court has taken a
different view earlier in the case of Krishna Pandurang
Wankhede Versus Sitaram Punjaji Wankhede reported in
1985 SCC Online Bom 267 that the order passed on application
for temporary injunction in Regular Civil appeal filed against the
decree is appealable under Order 43 Rule 1 sub-rule (r) of the
CPC. He has further pointed out that this view was further
reiterated by the two Single Judges of this Court in Writ Petition
No. 6166 of 2009 in the case of Shri Shivaji Shankarrao Patil
versus Dnyanu Manu Patole dated 27th July, 2009 and also in
Writ Petition (Stamp) No. 31823 of 2014 in the case of Shri
Subhash Sheti Pawar versus Sou. Minkashi Ravindra
Zadbuke & ors., dated 17th March, 2015.
The learned Senior Counsel for the respondent has
submitted that Section 104 of the CPC is explicitly clear about
what orders are appealable. The category of orders appealable
is expressly mentioned in the Rule 1 Order 43 of the CPC. He
has argued that the provisions made under sub-rule (r) of Rule 1
Order 43 of the CPC is an express provision and it is restricted to
the order passed under Order 39 Rule 1 of the CPC. Order 39
Rule (1) of the CPC speaks of application for interim relief made
in the suit and, therefore, it cannot be stretched to appeal.
Per contra, the learned Counsel for the appellant has relied
on sub-rule (r) Rule 1 Order 43 of the CPC. He has further
submitted that the sub-rule (r) is to be read by giving inclusive
interpretation, so long as there is no specific exclusion that no
order of refusal or grant of interim injunction is appealable, the
provision of Order 43 of the CPC is always available. He has
relied on sub-section 1 of Section 106 of the CPC and argued
that if an appeal from any order shall lie to the court to which an
appeal would lie from the decree in the Suit then otherwise in the
High Court. Section 104 and Order 43 of the CPC is to be read
alongwith Section 106 of the CPC.
Under Section 96 of the CPC, a judgment and decree is
appealable and appeal against an order lies under Section 104 of
the CPC. Section 96 of the CPC co-relates with the Order 41 and
Section 104 goes along with Order 43 of the CPC. Section 106 of
the CPC is a general provision wherein Section 104 alongwith
Order 43 Rule 1 of the CPC is a specific and express provision.
Relief in respect of temporary injunction can be sought in suit as
well as in any appeal. Sub-section 2 of Section 104 of the CPC
states that no appeal shall lie from any order passed in appeal
under this section. This view is supported in the case of
Shobha Dinesh Supare (supra) and also two judgments of the
Division Bench of this Court in the case of Krishna Yeshwant
Shirodkar (supra) and in the case of Robert Punaji Salvi
(supra).
In the case of Krishna Yeshwant Shirodkar versus
Subhash Krishna Patil (supra), the issue before the Division
Bench of this Court was mainly in respect of clause 15 of the
letters patent hence cannot be relied on. Against an order
passed in appeal, preferred under Section 104 of the CPC before
the learned Single Judge, no further appeal is allowed in view of
the bar under sub-section 2 of Section 104 of the CPC and,
therefore, in the result, the letters patent appeal against such
interim order is also not maintainable. The said ratio laid down in
both the matters is definitely helpful to understand the scope of
Section 104 of the CPC. When there is an issue of interim order
in Regular Civil Appeal under Section 96 of the CPC, there is no
question of considering Section 104 of the CPC or bar under
sub-section 2 of Section 104 of the CPC.
Thus, if Misc. Appeal is filed under Order 43, then there is a
bar under Section 104 (2) of the CPC, however, if the Appeal is a
Regular Civil Appeal against final judgment and decree filed
under Order 41 of the CPC, in that event the three Hon''ble
Judges of this Court in the cases of Krishna Pandurang
Wankhede (supra), Shri Shivaji Shankarrao Patil (supra) and
Shri Subhash Sheti Pawar (supra) have taken a view that such
order is appealable under Section 104 and Order 43 of the CPC.
The ratio laid down is to be revisited.
In the case of Krishna Pandurang Wankhede (supra) and
in the case of Shri Shivaji Shankarrao Patil (supra), the learned
Single Judges of this Court have observed that if the appeal
against the order is filed under Section 104 of the CPC, then only
sub-section (2) will come into operation. The sub-section (2) of
Section 104 of the CPC controls the orders passed in the matters
filed under sub-section (1) of Section 104 of the CPC. It was
held that appeal against decree is a continuation of a suit and,
therefore, the remedy under Order 39 Rules 1 and 2 of the CPC
if exhausted in the First Appeal, then it being an interim order, is
further appealable under Section 104 along with Order 43 of the
CPC. Under sub-rule 2 of Order 43 of the CPC, the procedure
of Order 41 of the CPC is adopted for the appeals filed and
conducted under Order 43 of the CPC. Thus, any interim order
passed in Appeal which is called as Misc. Appeal under Order 43
of the CPC in the District Courts, though cannot be challenged
further in appeal, if the Regular Civil Appeal is filed under Section
96 read with Order 41 of the CPC, then admittedly the provision
of Section 104 sub-section 2 of the CPC is not attracted and so it
is appealable under Order 43 of the CPC. This view is taken by
the learned Single Judges of this Court.
The Section 104 of the CPC restricts to those orders which
are expressly provided in the body of this Code or by any law for
the time being in force. While interpreting statute, the provisions
can be read by implication also. When there is an express
provision, then it is to be restricted to what is mentioned
expressly in the Section and nothing can be borrowed as implied.
The Rule 2 Order 43 of the CPC states that procedure
under Order 41 shall apply, so far as may be, to appeals from
orders. For Appeals filed under Sections 96 and 104 of the CPC
and in Orders 41 and 43 respectively in miscellaneous and
Regular Appeals same procedure is to be adopted, however,
there is basic qualitative difference in their character. In Section
96 of the CPC, there is no provision like sub-section 2 of Section
104 of the CPC. When appeal against an order is preferred, all
the issues are not finally adjudicated on merits as required in
decree. Therefore, only one appellate forum is provided to
challenge such orders in the nature of Appeal from Order under
Section 104 alongwith Order 43 of the CPC. Hence, such interim
orders cannot be challenged again second time in Appeal from
Order. On the other hand, judgment in Regular First Appeal filed
under Section 96 and Order 41 of the CPC can be challenged by
filling Second Appeal.
It is well settled law that appeal cannot lie against all the
orders except the orders, which are mentioned expressly in Rule
1 of Order 43 of the CPC. It is useful to reproduce Section 104
of the CPC for correct understanding.
"104. Orders from which appeal lies.- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:--
[*****]
[(ff) an order under section 35A;]
[(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]
(2) No appeal shall lie from any order passed in appeal under this section".
Rule 1 of Order 43 of the CPC states as follows:
"1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely:--
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper court [except where the procedure specified in rule 10A of Order VII has been followed];
(b) [***];
(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a Suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an Order to set aside a decree passed ex parte;
(e) [* * *];
(f) an order under rule 21 of Order XI;
(g) [* * *];
(h) [* * *];
(i) an order under rule 34 of order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
[(ja) an order rejecting an application made under sub- rule (1) of rule 106 of order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that order is appealable];
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(I) an order under rule 10 of Order XXII giving or refusing to give leave;
(m) [* * *];
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
[(na) an order under rule 5 or rule 7 or Order XXXIII rejecting an application for permission to sue as an indigent person];
(o) [* * *]
(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an order under rule 1, rule 2, [rule 2-A ] rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1 or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 [or rule 23-A] or Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(v) [***];
(w) an order under rule 4 of Order XLVII granting an application for review".
Any other order, which is not included in Order 43 Rule 1
sub-rules (a) to (w) is not appealable under Section 104 of the
CPC. Thus, the list is exhaustive and not enumerative. It does
not leave scope to a party to file an appeal under Section 104
and Order 43 of the CPC challenging any order except Rule 1 (a)
to 1 (w). The orders passed under Rule 5 Order 41 of the CPC
are not mentioned in the list given under Rule 1 of Order 43 of
the CPC. If the legislature intended that the order of interim
injunction passed in First Appeal is appealable under Section 104
and Order 43 of the CPC, then it would have been specifically
mentioned in the list under Rule 1 of Order 43 of the CPC. There
is inbuilt support to this view in Rule 1 Order 43 itself, if sub-rules
1 (c) and (d) are read together and compared with the sub-rules
1 (t) and (u) together.
Order 9 of the CPC pertains to appearance of parties and
consequence of non-appearance. Rule 9 states about the
dismissal of the suit and the application taken out by the plaintiff
to set aside the dismissal order. Similarly, as per Rule 1 (d) of
Order 43 of the CPC, again Order 9 Rule 13 of the CPC is
mentioned which says setting aside decree ex-parte against
defendant.
Rule (1) sub-rule (t) of Order 43 of the CPC states that an
order of refusal under Rule 19 of Order 41 to re-admit or under
Rule 21 of Order 41 to re-hear an appeal. Under Rule 19 of
Order 41 of the CPC, if such appeal is dismissed for default, then
the appellant may apply to the Appellate Court for re-admission
of the appeal and the order passed under Rule 19 is made
appealable by enacting sub-rule (1) (t) of Order 43 of the CPC.
Similarly, sub-rule (1) (u) of Order 43, an order under Rule 23 of
Order 41 remanding a case is appealable under Order 43 of the
CPC. Rule 23A of the CPC is about remand of case by the
appellate court or remand in other case.
While entertaining the Regular Civil Appeal, if the First
Appellate Court passes interim order under Order 39 Rules 1 and
2 of the CPC, it cannot be challenged further by taking help of
sub-rule (r) of Rule 1 of Order 43 of the CPC and if that interim
order is required to be challenged, then remedy cannot be
resorted to in the nature of appeal. However, the avenue under
Order 43 of the CPC is not open not because of the bar of
Section 104 (2) of the CPC, but such order is not listed in Rule 1
of Order 43 of the CPC. The omission in the list of Rule 1 of
Order 43 of the CPC itself puts express bar on the appealability
of the order. The primary duty of the Court to give correct effect
to the intention of the legislature as expressed in the words used
by it.
Undoubtedly, such orders are passed within the appellate
jurisdiction which is a parent jurisdiction and, therefore, such
orders are to be expressly and separately required to be
mentioned in the list of Rule 1 of Order 43 of the CPC.
The Appellate Court has power to grant stay to the
execution of the decree or order passed by the trial Court under
Order 41 Rule 5 of the CPC. Thus, the order is passed
necessarily under the appellate jurisdiction which is basic and
parent jurisdiction. If the legislature intended this order of stay
which is passed under Rule 5 of Order 41 of the CPC should be
appealable, then it would have listed the said order in Rule 1 of
Order 43 of the CPC. However, it is not mentioned by the
legislature. The Court cannot read law which is not written. The
legislative casus omissus cannot be supplied by judicial
interpretation. Keeping in view the other provisions of the Code,
it appears that the omission to mention the interim order passed
in First Appeal under Rule 1 of Order 43 is deliberate and not
accidental. Thus, to sum up though appeal is a continuation of
the suit under Rule 2 of Order 43, the Rules under Order 41 shall
apply so far as may be to appeals from orders is mentioned.
However, only four Rules in Order 41 of the CPC are appealable
under Order 43 of the CPC i.e. Rules 19, 21, 23 and 23A of
Order 41 of the CPC and the orders passed under other rules are
not at all appealable under Order 43 of the CPC. Hence, it is not
maintainable.
With due respect and humility, I am not in agreement with
the view taken by earlier three Judges in the cases of Krishna
Pandurang Wankhede (supra), Shri Shivaji Shankarrao Patil
(supra) and Subhash Sheti Pawar (supra) holding that the order
of interim injunction passed in appeal filed under Order 41 of the
CPC is appealable under Order 43 Rule (1) sub-rule (r) of the
CPC. Certain very relevant provisions of Section 104 and
Order 43 of the CPC were not pointed to the earlier benches and,
therefore, those provisions were not at all discussed. In my
considered view, under given circumstances, it is not a case
where different view is taken on a issue, but there was no
opportunity to discuss the issue. However, it is better to refer this
issue to the larger bench for more authoritative pronouncement.
Hence, I refer this matter to the Division Bench on the following
issue :
ISSUE
Whether the order of interim injunction passed in
Regular Civil Appeal filed under Order 41 of the CPC
is appealable under Order 43 Rule (1) sub-Rule (r) of
the CPC.
Hence, the present Appeal from Order is not maintainable.