Allahabad High Court
Amrik Singh vs M/S Bala Ji Rice Mills And 4 Others on 5 April, 2013
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
COURT NO. 35
F.A.F.O. No. 873 of 2013
Amrik Singh
Versus
M/s Bala Ji Rice Mills, Bandda, Road, Khutar, Tehsil Puwayan, District Shahjahanpur (U.P.) through its partner Rakesh Kumar Sharma and others
Counsel for the appellant: Sri B. B. Paul
CORAM:
HON'BLE RAKESH TIWARI, J
HON'BLE ANIL KUMAR SHARMA, J.
(By Justice Anil Kumar Sharma)
This appeal challenges the order dated 8.3.2013 passed by Civil Judge (Senior Divison) Shahajahanpur in O. S. no. 222 of 2013, whereby instead of granting exparte ad interim, notices have been issued to the defendants-respondents. The impugned order reads as under:
" 8-3-2013
izkFkZuk i= 8x e; 'kiFk i= 9x ij oknh ds fo}ku vf/koDrk dks ,di{kh; :i ls lqukA
oknh dh izkFkZuk gS fd vLFkk;h fu"ks/kkKk bl vk'k; dh tkjh dh tkos fd izfroknhx.k fey esllZ ckyk th jkbl fey dh rFkk mldk leLr e'khus Hkou vkfn dh fcdzh lafonk vkfn djus ls okn ds yEcu dky esa ckt jgsA
oknh ds o}ku vf/koDrk dks lqukA pwafd nkf[ky vfHkys[kh; lk{; ls oknh dk ,d{kh; :i ls izFke n`"V;k ekeyk curk izrhr ugha gks jgk gS ftl dkj.k izfroknh x.k dks Hkh lquk tkuk vko';d gSaA
vkns'k
01& izfroknhx.k dks uksfVl tkjh gksA oknh vko';d iSjoh djsA
02& i=koyh izkFkZuki= 8x ij lquokbZ gsrq fnukad 19-03-2013 dks is'k gksA "
Learned counsel for the appellant has vehemently argued that through the impugned order the learned trial court without discussing the facts of the case and evidence adduced by the plaintiff has declined to grant ad interim injunction, so it has grossly erred in not granting exparte ad interim injunction order in favour of the plaintiff and against the defendants-respondents.
At the very outset we requested the learned counsel for the appellant to address the Court about maintainability of the appeal. In support of his contention he has placed reliance on the case of H. Bevis and Co. Vs. Ram Behari and others AIR (88) 1951 Allahabd 8. We have carefully perused the report of this case and find that it does not at all support the contention of the appellant. In this case there was difference of opinion between the two Hon'ble Judges of the division bench of this Court on the issue of maintainability of the appeal against the order issuing notices to defendants on application for ad interim injunction and the matter was referred to third Hon'ble Judge, who took the view that order refusing to issue an ad interim injunction as allowed by Rule 3 of Order 39 of Code of Civil Procedure is not appeal able. Thus, by majority view it was held that appeal against the aforesaid order is not maintainable. However, in the peculiar facts and circumstances of the case, the Court treated the appeal as civil revision and ad interim injunction order was granted.
Order 39, C.P.C. lays down the provision of grant of temporary injunction and interlocutory orders. Under Order 39 Rule 1, C.P.C. the court is empowered to issue a temporary injunction in any suit. Similarly under Rule 2 the court has been given a power for issue of temporary injunction to restrain the repetition or continuance of breach in a suit. Rule 2A, C.P.C. lays down consequences of disobedience of breach of injunction and Rule 3 of Order 39, C.P.C. empowers the court to direct notice to opposite party where it appears to the court that it is necessary to do so before granting the applicant temporary injunction.
The relevant portion of Order 43, Rule 1, C.P.C. as well as Sub-rule (r) is quoted below : --
"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 2A, Rule 4 or Rule 10 of Order XXXIX;"
From the above Sub-clause (r) it is apparent that an appeal lies only against an order under Rule 1, Rule 2, Rule 2A, Rule 4, and Rule 10 of Order 39, C.P.C. The mere order issuing notice on an application for grant of an injunction clearly comes under the provisions of Rule 3 of Order 39. An order under Rule 3 of Order 39 is not appealable under Order 43, Rule l(r). It is, therefore, clear that whenever a court passes an order for issue of notice on an injunction application, this order is not appealable under Order 43, Rule 1(r), Civil Procedure Code.
In the instant case, what the trial Court did is that it neither passed an ex parte injunction in favour of the plaintiff nor refused to grant it. The trial Court on the basis of material placed before it opined that exparte there appears to be no prima facie case in favour of the plaintiff so without notice to the defendants it would not be just and proper to grant an ex parte temporary injunction. Therefore, the trial Court chose to proceed under Rule 3 of Order 39 of the Code. Rule 3 reads;
"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.
It is also required in the provision of this rule 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."
In Lakhai Vs. Ram Niwas AIR 1987 All 345, it was held that (para 7) :
"The mere order issuing notice on an application for grant of an injunction clearly comes under the provisions of Rule 3 of Order 39. An order under Rule 3 of Order 39 is not appealable under Order 43, Rule 1(r)."
Therefore, in view of the legal proposition referred to above, we hold that the impugned order is an order under Rule 3 of Order 39 C.P.C. and no appeal lies against that order under Order 43, Rule 1(r) of the Code of Civil Procedure.
Learned counsel for the appellant has valiantly tried to support the plaintiff's case for grant of ad interim injunction and his prima facie case in support thereof, but we refrain to dwell upon these issues, as the matter is still sub-judice before the learned trial Court and any observation made by us on merits of the case may adversely affect case of any party. However, suffice it to say that the learned counsel for the appellant could not place before us any document, except the affidavit of the plaintiff which was filed in the trial Court in support of his contention. The legal position noted above also rules out the contention of the learned counsel for the appellant that the impugned order falls within the ambit of Rule 1 of Order 39 of Code of Civil Procedure.
In view of the above, we find that the instant appeal is not maintainable and is accordingly dismissed in limine.
Let certified copy of the order be sent to the court concerned within a week.
(Justice Anil Kumar Sharma) (Justice Rakesh Tiwari)
April 05, 2013
Imroz/-
