Ved Prakash Mukhariya vs Balmukund Sharma and Others

Sujoy Paul, J.

With the consent of parties, the matter is finally heard.

At the outset, learned Counsel for the parties agreed to address the Court on the question of preliminary objection raised by Shri D.D. Bansal, learned Counsel appearing for the Respondent No. 1.

Shri Bansal submits that a bare perusal of impugned order dated 20.5.2011 shows that it is an ad interim order directing maintaining status quo between the parties, which is necessarily an order passed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. By passing the said order an interim injunction was granted and reply was directed to be filed on the application under Order XXXIX Rule 1 and 2, CPC Thus, the Respondent submits that it is, in fact, an order passed under Order XXXIX Rule 1 and 2, CPC On the contrary, learned Counsel for the Petitioner Shri Jitendra Sharma submits that it is an application u/s 151 of the Code of Civil Procedure, on which the stay order was passed and such an order is not appealable.

Per Contra, Shri D.D. Bansal submits that it is appealable under Order XLIII Rule 1 (r) of the Code of Civil Procedure, which reads as under:

Order XLIII-Appeal from orders-

Appeal from orders.--An appeal shall lie from the following orders under the provisions of Section 104, namely:

(r) an order under Rule 1, Rule 2 [rule 2A], Rule 4 or Rule 10 of Order XXXIX;

To elaborate, Shri Bansal submits that it is necessarily an order under Order XLIII Rule 1 CPC only and it is appealable. He relies on AIR 1982 NOC 5 (CAL.) (Kamalendu Chanda v. Dilip Kumar Biswas), wherein it is held that "order granting interim injunction under Order XXXIX Rule 1 or Rule 2 is an appealable order under Order XLIII Rule 1(r)". He further relies on the judgment of Allahabad High Court reported in Ishrat Husain Khan Vs. Addl. District Judge, Gorakhpur and others, In the said matter in paragraphs 6 and 7 the High Court opined as under:

As to whether an appeal was maintainable before the appellate court in respect of the ad interim injunction granted by the trial court is only a technical objection. The fact remains that interim injunction was granted which could be granted under Order 39, Rules 1 and 2 of the CPC as also under the provisions of Section 151, CPC If the trial Court has granted injunction u/s 151, CPC the import of the injunction is the same which is of the order passed under Order 39 Rules 1 and 2, CPC Therefore, the consideration of the appeal against the interim order by the first appellate court was not barred and the appeal could not be held to be untenable merely because Section 151, CPC was invoked by the trial Court. The trial court does not say that such an injunction cannot be passed under Order 39, Rules 1 and 2 CPC Section 151 CPC is generally invoked in the matter of grant of temporary injunction where the case is not covered by Order 39, Rules 1 and 2, CPC It was held by the Supreme Court in the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, that there being on such expression in Section 94, CPC which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code, the Courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order 39, CPC if the court is of the opinion that the interests of justice require the issue of such interim injunction.

The interim order granted by the trial court could have been granted under Order 39, Rules 1 and 2, CPC also it was not a case where Order 39, Rules 1 and 2, CPC would not apply to the grant of temporary injunction and the court could fall back on its inherent power u/s 151, CPC The inherent power is not conferred on the court. It is a power inherent of the court by virtue of a duty to do justice between the parties before it. Looking to the nature of the interim order passed by the trial Court it is safe to infer that the trial court had passed the order under Order 39, Rules 1 and 2, CPC because the case of the Petitioner Defendant before the trial court would squarely fall within the ambit of Order 39, Rules 1 and 2, CPC By writing that the order was passed u/s 151, CPC it cannot be inferred that such an order was not capable of being passed under Order 39, Rules 1 and 2, CPC That being so, the appeal before the appellate Court was maintainable and the appellate court could examine the legality of the order passed by the trial Court.

In nutshell, the contention of Shri Bansal is that the order is appelable under Order XLIII Rule 1(r), CPC and writ petition is not maintainable.

Shri Jitendra Sharma, learned Counsel for the Petitioner submits that he has no serious objection to this objection but prays that the writ petition may be converted into an appeal.

I have heard the learned Counsel for the parties at length and perused the record.

In para 7 of the judgment of Allahabad High Court in Ishrat Husain Khan''s case (supra) it was made clear that by writing that the order was passed u/s 151 of the Code of Civil Procedure, it cannot be inferred that such an order was not capable of being passed under Order 39, Rules 1 and 2, CPC Accordingly, the High Court held that the appeal is very much available under Order XLIII Rule 1(r) of the Code of Civil Procedure. I respectfully agree with the view taken by Allahabad and Calcutta High Court in the aforesaid matters. Hence, the Petitioner has a remedy under the aforesaid provision to prefer an appeal.

In a recent judgment of Supreme Court principles for exercising Article 227 jurisdiction are laid down in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, in para 49(c) the Supreme Court held as under:

(c)... In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

Considering the aforesaid, it is held that the Petitioner has a remedy under the CPC and he may avail the same. Since the court fees for preferring appeal may be different, this petition is not converted into an appeal. Registry is directed to return the certified copy of the impugned order to enable the Petitioner to file an appropriate appeal.

With the aforesaid, petition is dismissed. No costs.