Ram Dhani And Others vs Raja Ram And Others
2011 Latest Caselaw 1514 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 

 
Civil Misc. Writ Petition No. 49152 of 2006
 

 

 
Ram Dhani & Ors.
 
Vs.
 
Raja Ram & Ors.
 

 
Appearance:
 

 
1.	Mr. M.K. Gupta, Advocate, assisted by Mr. Subham 	Agrawal,  Advocate, as Amicus Curiae. 
 

 
2.	Mr. M.C. Chaturvedi, C.S.C., assisted by  Sri B.K. Pandey, 	S.C. and Dr. Y.K. Srivastava, Advocate.
 

 

 
Hon'ble Ferdino Inacio Rebello, Chief Justice
 
Hon'ble Vineet Saran, J.

(Delivered by Justice Ferdino I. Rebello, Chief Justice)

1. A learned Judge, noticing conflicting judgments of this Court, has been pleased to refer the following question for our consideration:-

"Whether a revision under Section 115 of the Code of Civil Procedure is maintainable against an order issuing a notice to the defendant on an application for a grant of a temporary injunction filed under Order 39 Rule 1 and 2 of the Code of Civil Procedure?"

2. The learned Single Judge, in the referral order, has noted -

(A) Following judgments, holding that a civil revision is not maintainable:-

(1) AIR 2003  All. 180,  Rajendra   Singh  and others  Vs. 	       Brij  Mohan Agarwal and another.
 
 (2)  2003 (3) AWC 1921,  Debi  Das Vs. State of  U.P. and 	       others.
 
 (3)  2005 (60) ALR 512, Bhagwati Prasad Lohar and others 	      Vs. State of U.P. through Secretary of Legal Department, 	        Lucknow, U.P. and others.
 
(4)   2002 (2) ARC 565, Debi Das (deceased) Vs. State of 	U.P. 	      and others.
 

 
(B) 	Following judgments, holding that a civil revision is not maintainable after amendment in Section 115 by U.P. Act No. 14 of 2003:-
 
	(1) 2006 (1) ARC 606, Mohd. Rais Khan Vs. Shree Naseeb Ullah    Khan and others.
 
	(2) 2006 (63) ALR 237, Narendra Kumar Vs. Nagar Nigam, Bareilly and 3 others.
 
	(3) 2006 (1) ARC 153, Lucknow Diocesan Trust Association Vs. Sri B.C. Jain and others.
 
	(4) 2006 (62) ALR 278, Rajpal Singh Vs. Richh Pal Singh and others.
 
	(5) Writ Petition No. 1609 (M/S) of 2006, Cantonment Board Lucknow and another Vs. District Judge (Incharge) Lucknow and others decided on 27.4.2006.
 

 
(C)	Following judgments, holding that a civil revision is maintainable:-	
 
(1) 2003 (51) ALR 101, Smt. Urmila Devi and others Vs. Nagar Nigam, Lucknow through Mukhya Nagar Adhikari.
 
(2) 2002 (3) AWC 2469, Smt. Soni Vs. District Judge, Allahabad and others.
 
(3) 2003 (Suppl) RD 345, Jagdish Vs. State of U.P.
 

 
(D) 	Following judgments, holding that a civil revision is 	maintainable after amendment in Section 115 by U.P. Act No. 	14 of 2003:-
 
(1) 2006 (64) ALR 383, Algu Vs. Bhola and others.
 
(2) 2004 (55) ALR 327, Guru Dutt Vs. Anju Khatri and another.
 
(3) 2004 (4) AWC 3236, Nagar Nigam, Gorakhpur Vs. Gorakhpur Development Authority, Gorakhpur and others.
 

 
3.	To answer the issue, we may first refer to Section 115 of the Code of Civil Procedure (hereinafter referred to as the 'C.P.C.') before its amendment, which read as under:-
 
"115. (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears - 
 
(a)	to have exercised a jurisdiction not vested in it by 	law, or
 
(b)	to have failed to exercise a jurisdiction so vested, 	or
 
(c)	to have acted in the exercise of its jurisdiction 	illegally or with material irregularity,
 
the High Court may make such order in the case as it thinks fit:
 
		Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where - 
 
(a)	the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
 
(b)	the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
 
(2) 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.
 
	Explanation.- In this section, the expression ''any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."
 
	
 
	Section 115, after the amendment in C.P.C., reads as under:-	
 
"115. (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears - 
 
(a)	to have exercised a jurisdiction not vested in it by 	law, or
 
(b) 	to have failed to exercise a jurisdiction so vested, 	or
 
(c)	to have acted in the exercise of its jurisdiction 	illegally or with material irregularity,
 

 
the High Court may make such order in the case as it thinks fit:
 

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(2) 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.

(3) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the High Court.

Explanation.- In this section, the expression ''any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."

Section 115, after the amendment in Uttar Pradesh, by the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 2003, reads as under:-

"115. Revision. (1) A superior court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court where no appeal lies against the order and where the subordinate court has -

(a) exercised a jurisdiction not vested in it by law, or

(a)failed to exercise a jurisdiction so vested, or

(b)acted in exercise of its jurisdiction illegally or with material irregularity,

(2) A revision application under sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district court.

(3) The superior court shall not, under this section, vary or reverse any order made except where,-

(i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.

(4) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the superior court.

Explanation I.- In this section, -

(i) the expression ''superior court' means -

(a) the district court, where the valuation of a case decided by a court subordinate to it does not exceed five lakh rupees;

(b) the High Court, where the order sought to be revised was passed in a case decided by the district court or where the value of the original suit or other proceedings in a case decided by a court subordinate to the district court exceed five lakh rupees;

(ii) the expression ''order' includes an order deciding an issue in any original suit or other proceedings.

Explanation II.- The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement."

4. A perusal, therefore, of the aforesaid amendment in Uttar Pradesh, would show that what was contained in Clause (b) of proviso to Section 115 (1) before its amendment has been reintroduced in Section 115 (3) (ii) after the amendment in the State of U.P. In the U.P. Amendment Act, 2003, the expression ''order' has been set out to include 'an order deciding an issue in any original suit or other proceedings.'

5. Section 2 (14) of C.P.C., describes an ''order' to mean ''the formal expression of any decision of a Civil Court which is not a decree.'

The expression ''decree' has been defined under Section 2(2) to mean ''the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.

6. An order thus has to have the trappings of a formal expression of a decision of a Civil Court. In the Explanation contained in Section 115 C.P.C. in the Central Act, both before and after the amendment, it is specifically set out that the expression ''any case which has been decided' includes ''any order made, or any order deciding an issue, in the course of a suit or other proceeding.' The provision as contained in the U.P. Amendment is revision against an order in a case decided. The intent and object, therefore, of both the Central Act and as amended in the State of U.P. appear to be, that a revision will be maintainable in respect of an order in a case decided.

7. The next relevant provision, which we have to consider, is Order 39 Rule 3 C.P.C., which reads as under:-

"3. Before granting injunction, Court to direct notice to opposite party. - 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:-

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant--

(a)to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with--

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent."

There is no U.P. Amendment, insofar as Order 39 Rule 3 is concerned. So far as Order 39 Rule 3-A C.P.C. is concerned, which directed the Court to dispose of an application for injunction within a time frame, the same has been omitted in the State of U.P. with effect from October 3, 1981. We do not propose to reproduce the contents of Order 39 Rules 1 and 2, C.P.C.

8. Under Order 39 Rule 3 C.P.C., the test is not of grant of injunction but a duty conferred on the Court to issue notice to the parties before grant of an injunction, unless it appears that the object of granting an injunction would be defeated by delay. In other words, the test the Court has to apply is the urgency involved in the matter which could result either in granting the injunction or issuing notice. A procedural provision, therefore, requires the Court to consider the urgency of the matter. If injunction is granted, the order is appealable or the defendant can move under Order 39 Rule 4.

9. The next relevant provision is Section 104 C.P.C., which sets out from which orders an appeal would lie. Section 104 (i) provides from which orders made under the rules an appeal is expressly allowed by the rules. Order 43 C.P.C., makes a provision for appeals from orders. We are concerned with Order 43 Rule 1 (r) C.P.C., which reads as under:-

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

(a) .. .. ..

(r) an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order XXXIX."

Thus, from an order made under Rule 1, Rule 2 or Rule 4, an appeal lies under Order 43 C.P.C. No appeal is provided for from a decision to issue notice under Order 39 Rule 3 C.P.C.

10. The question, therefore, for our consideration is whether issuing of notice under Order 39 Rule 3 amounts to an order and is revisable under Section 115 C.P.C.?

Before addressing ourselves to the controversy, we may refer to the judgment of the Supreme Court in the case of Major S.S. Khanna Vs. Brig. F.J. Dillon, AIR 1964 SC 497. In the said case, an issue was framed whether the suit was not maintainable and as such the plaintiff was not entitled to institute the suit? This was tried as a preliminary issue and it was held that the suit was not maintainable. That order was interfered with by the High Court of Punjab in exercise of its revisional jurisdiction. It is against that order that an appeal was preferred by Major Khanna. One of the contentions raised was that the order did not amount to ''a case which has been decided'. The second contention was that a decree which may be passed in a suit being subject to appeal to the High Court, the power of the High Court was by the express terms of Section 115 excluded, and the third contention was that the order did not fall within any of the three Clauses (a), (b) and (c) of Section 115 of C.P.C. The Supreme Court, addressing itself on the meaning of the expression ''case' held that the meaning of the expression 'case' must be sought in the nature of the jurisdiction conferred by Section 115, and the purposes for which the High Courts were invested with it. We may quote paragraph 11 of the judgment, which reads as under:-

"11. The expression "case'' is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. To interpret the expression "case'', as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is not most needed, and may result in the perpetration of gross injustice."

In the course of discussion, the Court held that the finding by the Subordinate Judge by an interlocutory order that the suit filed by Dillon was not maintainable, had a direct bearing on the rights of Dillon to a decree for recovery of loan, and further observed that the expression ''case' includes a part of the case which has been finally decided. After so answering, the Court then proceeded to answer, as to whether the High Court has power to set aside an order which does not finally dispose of the suit. That was answered by holding that the jurisdiction was limited to the matter which was finally disposed of. Thus, the expression 'case decided' from this observation does not mean the entire proceedings, but can include a part of the case or proceedings, but which must finally dispose of that part of the case or proceeding. Thus, for the Court to exercise its revisional jurisdiction, it follows that a part of the proceedings must at least be disposed of finally.

11. The issue of maintainability of a revision application subsequent to amendment in Section 115 C.P.C. and the proviso thereto, came up for consideration before the Supreme Court in the case of Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers & Ors., (2003) 6 SCC 659. The Supreme Court, considering Section 115 C.P.C., observed that it is essentially a source of power for the High Court to supervise the Subordinate Courts. It does not, in any way, confer a right on a litigant aggrieved by any order of the Subordinate Court to approach the High Court for itself. The scope for making a revision under Section 115 is not linked with a substantive right. The Court was explaining this in the context that a right of appeal is a substantive right but that is not the case insofar as an application under Section 115 is concerned. Answering the test of Section 115 C.P.C., the Court answered the issue in paragraph 32 of the judgment, which reads as under:-

"32. A plain reading of S. 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under S. 115. There is marked distinction in language of S. 97(3) of the Old Amendment Act and S. 32(2)(i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in S. 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation."

The issue, again came up for consideration in the case of Gayatri Devi & Ors. Vs. Shashi Pal Singh, (2005) 5 SCC 527, where the law as explained in Shiv Shakti Coop. Housing Society (supra) was reiterated.

Both the judgments are in the context of C.P.C., as amended, and have not taken into consideration Section 115, as operating in the State of Uttar Pradesh pursuant to the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 2003.

12. Section 115 (3) as applicable to the State of U.P., apart from providing that the Superior Court would not vary or reverse any order except where - (i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or procedure, or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made, would also require that there must be an order and that order decides the part of the case or proceedings. These are further considerations which the Court must apply after it comes to the conclusion that it is a case decided. Thus, Section 115 (3) really would be of no assistance in deciding the issue of 'order' or 'case decided'.

13. Does an order issuing notice to defendant as is the normal procedure under Order 39 Rule 3 have the effect of finally disposing of a part of the case or proceedings either under Order 39 Rule 1 or Order 39 Rule 2 or Order 39 Rule 4 and, as such amounts to a ''case decided' and, as such, under Section 115, as it stands in the U.P., a revision would be maintainable. Does the Court in following the procedure under Order 39 Rule 3 dispose of part of the case or proceedings or is it merely a step in the case.

14. The other aspect of the matter is that the order includes 'an order deciding an issue in any original suit or other proceedings'. We have already referred to the definition of 'order', which is the formal expression of any decision of a Civil Court which is not a decree. A 'decree' is a formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Does the action of a trial Court, finding no urgency and proceeding to issue notice to the parties and thereby not granting ex parte injunction, amount to conclusively determining the rights of the parties in respect of a matter in controversy in the suit? Determination of the rights of the parties would mean 'considering and determining' the application for injunction, either by grant or refusing to grant.' Does postponing the day for consideration of the application for temporary injunction or not granting ex parte injunction, result in conclusively determining the rights of the parties with regard to any of the matter in controversy in the suit?

15. With this background, we now consider the judgments referred to in the referral order and which deals with the following issues -

(A) JUDGMENTS HOLDING THAT A CIVIL REVISION IS NOT MAINTIANABLE

In Rajendra Singh & Ors. Vs. Brij Mohan Agarwal & Anr., AIR 2003 Alld. 180, the Court took the view that issuing a notice may amount to 'case decided' but that order does not dispose of injunction application or terminate the proceedings for temporary injunction and, as such, a revision is not maintainable.

In Debi Das Vs. State of U.P. & Ors., 2003 (3) AWC 1921, the Court took the view, considering the proviso, that had the order been made in favour of the revisionist, it would not have finally disposed of the suit.

In Bhagwati Prasad Lohar & Ors. Vs. State of U.P. through Secretary of Legal Department, Lucknow, U.P. & Ors., [2005 (60) ALR 512, the Court observed that as the revisionist-applicants before the trial Court had failed to show any immediate irreparable injury, a revision against the order issuing notice would not be maintainable.

(B) JUDGMENTS HOLDING THAT A CIVIL REVISION IS NOT MAINTAINABLE AFTER THE AMENDMENT

In Mohd. Rais Khan Vs. Naseeb Ullah Khan & Ors., AIR 2006 All. 166, the learned Court noted the amendment brought about in Uttar Pradesh and observed that, while refusing to grant ex parte temporary injunction by merely issuing notice upon such application may amount to a case decided but the proviso restrains the High Court and precludes it from interfering in revision in such a case, as the order of ex parte injunction would not have disposed of the injunction application or terminated the proceedings for temporary injunction. Reference, thereafter, was made to the case of Rajpal Singh Vs. Richh Pal Singh & Ors. (2006) 62 ALR 278, which placed reliance on the judgment in Shiv Shakti (supra). We may only note that the proviso, as it stands in the C.P.C., is absent from Section 115, as amended in the State of Uttar Pradesh.

In Narendra Kumar Vs. Nagar Nigam, Bareilly & 3 Ors., [2006 (63) ALR 237] also, the Court was pleased to hold that the revision before the Court of District Judge was not maintainable against the order of trial Court directing issuance of notice and fixing a date for disposal of the matter.

In Lucknow Diocesan Trust Association Vs. Sri B.C. Jain & Ors., 2006 (1) ARC 153, the Court considered the Section as amended and observed that the jurisdiction can be invoked only in a case which has been decided in an original suits or other proceedings by the subordinate Court. Reliance was placed on the judgment in Shiv Shakti Coop. Housing Society (supra).

In Rajpal Singh Vs. Richh Pal Singh, [2006 (62) ALR 278], the Court reiterated the view that no revision would lie against issuance of notice.

We may next refer to the judgment in the case of Cantonment Board, Lucknow & Anr. Vs. District Judge (Incharge) Lucknow & Ors., 2006 (4) AWC 3281. There again, the issue arose, whether against an order issuing notice to the defendants on an application for temporary injunction filed under Order 39 Rules 1 and 2 C.P.C., a revision under Section 115 C.P.C. is maintainable. The learned Judge, after referring to various provisions and the judgments, observed that, unless an issue or controversy is determined or decided finally, it shall not be appropriate to say that 'case has been decided' or 'the issue has been decided' by the Court to attract the revisional power conferred by Section 115 C.P.C. (See M/s. D.L.F. Housing and Construction Co. (P) Ltd. Vs. Sarup Singh & Ors., AIR 1971 SC 2324).

(C) JUDGMENTS HOLDING THAT A CIVIL REVISION IS MAINTAINABLE

In Smt. Urmila Devi & Ors. Vs. Nagar Nigam, Lucknow through Mukhya Nagar Adhikari, [2003 (51) ALR 101], the Court held that an order issuing notice was not an order which was appealable and the learned Judge placed reliance on the judgment in H. Bevis and Company Vs. Ram Behari, AIR (38) 1951 Alld. 8, taking the view that against an order refusing to grant an ex parte injunction a revision is maintainable.

In Smt. Soni Vs. District Judge, Allahabad & Ors., 2002 (3) AWC 2469, after examining the record, the learned Single Judge was pleased to observe, on the facts, that the trial Court has expressly decided that the plaintiff is not entitled to ex parte injunction and, therefore, held that the revision is maintainable as it amounts to a case decided. The learned Judge distinguished the Division Bench judgment in U.P. Financial Corporation Vs. District Judge, 2001 (3) AWC 2052.

(D) JUGMENTS HOLDING THAT A REVISION IS MAINTABLE AFTER AMENDMENT

The judgment in Algu Vs. Bhola & Ors., 2006 (3) AWC 2622, was again on the issue, whether a revision against an order issuing show cause notice to the defendant on an application seeking temporary injunction is maintainable? The Court, after considering other judgments, observed that an order directing simply issuance of notice to the defendants on an application for temporary injunction, if it occasions failure of justice or causes irreparable injury to the party against whom it is made and challenged under Section 115, such a revision cannot be said to be wholly incompetent, not maintainable or without jurisdiction. We may only observe that this judgment has not taken into consideration the expression 'order'.

In Guru Dutt Vs. Anju Khatri & Anr., [2004 (55) ALR 327] decided on 14.11.2003, the Court, after considering Section 115 C.P.C. as amended in the State of U.P., addressed itself to the question that an order, if allowed to stand, would occasion a failure to justice or cause irreparable injury and in the fact of that case, held that the trial Court exercised the jurisdiction so vested and, therefore, interfered with the case under Section 115 C.P.C.

Next, we may refer to the judgment of this Court in the case of Nagar Nigam, Gorakhpur Vs. Gorakhpur Development Authority & Ors., (2004) 4 AWC 3236. In that case, again the dispute arose from issuance of notice. The learned Court observed as under:-

"... I am of the firm view that not passing any order and merely directing notices to be issued at that stage vis-a-vis the application for interim injunction in which exigencies for grant of injunction were pressed into service before the Trial Court by the plaintiff, refusal to grant injunction and merely directing to issue notices would amount to refusal to pass order granting injunction at that stage and it would thus justify preferring of appeal/revision before the District Judge."

The learned Judge, in the said case, however, has confused himself by holding that either appeal or revision is maintainable. If an appeal is maintainable, no revision would be maintainable.

16. We may now consider the judgment in H. Bevis & Compay (Supra). That was a case before the amendment of the C.P.C. and its further amendment. In that case, the appeal was pending and the Court did not grant ex parte injunction. Mushtaq Ahmad, J. observed that such an order was appealable and thereafter proceeded to hold that if it was not appealable, he would have exercised his revisional jurisdiction. Desai J., on the contra, was pleased to observe that Rules 1 and 2 are subject to Rule 3, which lays down the procedure, and so long as that procedure is followed and final orders are not passed on the application, it cannot possibly be said that an order cannot be passed under either of the Rules and, therefore, held that no appeal would lie. The learned Judge noted from the judgment in Luis Vs. Luis, 12 Madras 186, that ''the order made by the subordinate Judge was not the formal expression of his decision on the question, whether an injunction should be granted or not. A discretion is vested in the Court by Section 494 of refusing to grant a temporary injunction if satisfied that the object of granting an injunction will not be defeated thereby and no appeal is provided in case of his refusal". A reference was made to a 3rd Judge. Agarwala, J., in his opinion, observed thus:-

"(31). I, therefore, think that when the Court refuses to grant an ex parte injunction and issues notice to the other side of the application for injunction, it has passed no order under R.1 or R.2 and, therefore, no appeal can lie from such an order. But where the Court grants the application for injunction ex parte, an appeal lies because the application made under R.1 or R.2 is disposed of."

Considering Order 39 Rule 3 C.P.C., the learned Judge observed that under Rule 3 of Order 39, what the Court has to see when requested to grant an ex parte injunction is whether ''the object of granting injunction would be defeated by the delay". The Court also observed that when the Court refuses to grant an ex parte injunction, by not applying its mind to the provisions of Order 39 Rule 3, it acts illegally or with material irregularity in the exercise of its jurisdiction and a revision would lie.

17. In U.P. Financial Corporation (supra), the Court was considering Section 115A C.P.C. as enacted by the State Legislature of U.P. Under Clause (ii) of the second proviso, the language was similar to the language in Section 115 (3) (ii). The Explanation also provided the meaning of expression ''any case which has been decided'. On the facts there, the trial Court did not grant ex parte injunction and fixed a date for hearing and in the meantime invited objections. A revision was filed before the District Court which was allowed. That was the subject matter before the High Court. In para 5, the Court observed as under:-

"5. The order which was sought to be impugned in revision apparently had not decided any issue whatsoever. Thus, the civil revision was not maintainable. ..."

We may only note that in that case, counsel for the respondent no.3 had taken a stand, on the facts of that case, that the revision would not be maintainable.

18. Though, not directly on the issue, we may also consider some observations of the Supreme Court in the case of Shah Babulal Khimji Vs. Jayaben D. Kania & Anr., AIR 1981 SC 1786. We may, at the outset, point out that the Supreme Court in the said judgment was not considering the expression 'order' but was dealing with the expression 'judgment'. However, in that context, reference was made to Section 104 and Order 43 C.P.C. While considering the expression 'judgment', the Court held that it could be a final judgment, a preliminary judgment or an interim or interlocutory judgment. In that context, it was noted that an interlocutory order, which contains the quality of finality in terms of Clauses (a) to (w) of Order 43 Rule 1 C.P.C. would be judgment and, therefore appealable. If, therefore, the issuance of notice and not granting injunction amounts to an order, then Order 43 would be applicable and no revision would lie.

One of the tests, which may apply is, whether the trial Judge decides a controversy which affects the valuable rights of one of the parties. In the instant case, the valuable right would be the refusal to grant an ex parte injunction. Considering Section 104 read with Order 43 C.P.C., the Court observed as under:-

"That having regard to the nature of the orders contemplated in the various clauses of Order 43, Rule 1, there can be no doubt that these orders purport to decided valuable rights of the parties in ancillary proceedings even though the suit is kept alive and that these orders do possess the attributes or character of finality so as to be judgments within the within the meaning of Clause 15 of the Letters Patent and hence, appealable to a larger Bench.

An 'order' thus for being an 'order' has to decide matters of moment or affect the valuable rights of the parties and those orders possess the attributes of finality. The Court, in that case, termed the order of the trial Judge refusing to appoint a Receiver and grant of an interim injunction to be a 'judgment'.

19. In Judicial Dictionary, 14th Edition by K.J. Aiyar, the word ''order' has been expressed thus, "The word ''order' is not a term of art. It has no fixed legal meaning. 67 CJS 520, the following statement occurs:

" ''Order' as a noun, has been held equivalent to or synonymous with ''decision'. [See 26 CJS 767, Note 72:"

20. From the discussion above, for an order to be revisable under Section 115 C.P.C., as is applicable in the State of U.P., firstly it must be an order which must decide a part of the case or the proceedings. The expression ''order' as it is defined in the C.P.C., requires determination which must bring finality by determining the rights of the parties in respect of the controversy in the application. Order 39 Rule 3 is a duty conferred on the Court before granting an injunction to issue notice to the party. It is a procedural provision, a step in the case. The Court, in the event, arrives at a conclusion that the grant of ex parte injunction would be defeated by delay, can in the case of urgency proceed to grant an injunction under Order 39 Rule 1 or Order 39 Rule 2. If the injunction is granted or rejected, as observed earlier, it would be appealable under Order 43. The procedure followed under Order 39 Rule 3 is determination by the Court of the urgency of the matter vis-à-vis the relief claimed by the plaintiff. On a failure to grant the injunction, no part of the case or the proceeding is disposed of, but the proceedings merely stand adjourned to the next date. In other words a step in the case or proceedings. In these circumstances, in our opinion, it cannot be said that, by merely issuing notice on arriving at a finding that there is no urgency, the same amounts to an ''order' within the meaning of Section 2 (14) C.P.C. In that context, the question of applying Rule 3 (ii) of Section 115 would not come into play. That can only be applicable if the other precondition of 'an order deciding the case' are satisfied. Therefore, merely issuing a notice on arriving at a conclusion that there is no urgency would not be an order which is revisible. It is not, as if a party is without a remedy if such a view is taken. The extraordinary jurisdiction of this Court under Article 227 of the Constitution of India would always be available in such a case.

21. Considering the above, while answering the question in negative, we hold that a revision would not be maintainable. We must place on record the valuable assistance rendered by the learned Amicus Curiae.

Let the matter be placed before the appropriate Bench along with record of Writ Petition No. 30481 of 2008.

 
May  5, 2011
 
AHA						(Vineet Saran, J.)   (F.I. Rebello, C.J.)