Usha Devi vs Shiv Kumar

Pramod Kumar Srivastava, J.—Heard learned counsel for the appellant on admission of second appeal and perused the record.

Original Suit No. 340/2014 (Shiv Kumar v. Usha Devi), was filed for the relief of permanent injunction, in which the plaintiff had moved an Application ''6-C'' for interim injunction. After hearing said interim injunction application 6-C was allowed on 20.10.2014 by trial court and the defendants were directed not to evict the plaintiff from the disputed property, otherwise than in accordance with law.

Against the said order dated 20.10.2014 Misc. Civil Appeal no. 17/2014 Usha Devi v. Shiv Kumar and another, was preferred under Order 18 CPC. After hearing the parties, learned Additional District Judge, Court No.-3, Etawah, had dismissed the said misc. civil appeal by its judgment dated 28.10.2015. Against the said judgment dated 28.10.2015, of lower appellate court, the defendants of original suit had preferred a petition under Article 227 No. 986/2016 Smt. Usha Devi v. Shiv Kumar and another. The said petition was dismissed by following orders dated 18.02.2016 :-

"Heard learned counsel for the parties.

This writ petition under Article 227 of Constitution of India has been filed challenging the judgment and decree passed by the 1st appellate court in a suit for injunction.

This suit for injunction filed by the contesting respondent was decreed by the Civil Judge (SD), Etawah. The consequential appeal filed by the petitioner was dismissed and, thereafter, this writ petition has been filed.

The statutory remedy available to the petitioner is by means of a second appeal, which has not been availed.

Under the circumstances, this writ petition is dismissed on the ground of availability of statutory alternative remedy.

Upon the petitioner supplying a photostat copy of the impugned judgment, the office may return the certified copy while returning the photostat copy on record".

After the order dated 18.02.2016 of this Curt as above, the defendant had preferred second appeal."

Learned counsel for the appellant contended that the appellant had adopted correct procedure earlier according to legal advice; but when the aforesaid order dated 18.02.2016 was passed, in which it was specifically mentioned that statutory alternative remedy available to the petitioner is by means of a Second Appeal, then she had filed second appeal; therefore this appeal should be admitted.

Section 100 CPC provides that , an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court.

A perusal of provisions and procedure mentioned in CPC especially Orders XX, XLI, XLII CPC along-with Part VII of CPC makes it clear that , first appeal shall lie from every decree passed by any Court exercising original jurisdiction; and the second appeal lies under section 100 and Order 42 CPC. In the present matter, at the time of passing above-mentioned order dated 18.02.2016, it is mentioned by this Court that "This suit for injunction filed by contesting respondent was decreed by the Civil Judge (Senior Division), Etawah". This observation is factually incorrect. In fact the original suit for injunction is still pending in trial court and has not been decided so far. Had it been decided finally then appeal would have been maintainable under Order 41 CPC. Since the said suit was not decided, and only application under Order 39, Rule 1 & 2 was decided, therefore misc. civil appeal was rightly preferred before the Court of District Judge under Order 43 CPC.

Since the above mentioned order dated 18.02.2016 appears to have been passed by this Court when the facts were not properly pointed out to it. For this reason, instead of mentioning of observation regarding disposal of interim injunction application, the observation was made about decreeing of the pending suit.

Since original suit was not first appeal under Order 41 CPC was never filed decreed or decided, and the therefore observation to the effect that "the statutory remedy available to the petitioner is by means of a second appeal "in said order is not correct. Second appeal against the said judgment dated 28.10.2015, of lower appellate court is not maintainable.

For this reasons, this appeal cannot be admitted and is accordingly dismissed.

Certified copy of the documents filed by the appellant may be returned to the appellant.