Kishor Shriram Agrawal vs State Of Maharashtra And Ors.
2003 Latest Caselaw 755 Bom

ORDER

S.G. Mahajan, J.

1. Appellant Kishor son of Shriram Agrawal has filed the present appeal against the order passed by Additional District Judge, Buldhana, on 03-03-2003 in M.J.C. No. 1/03., whereby the learned Judge rejected the application of the present appellant for the grant of temporary injunction.

2. The appellant who is the original plaintiff filed a suit for declaration and perpetual injunction being Reg. C. S. No. 200/01 in the Court of Civil Judge, Senior Division, Buldhana. In that civil suit he moved an application for the grant of temporary injunction for protection of his possession over the property in suit. The said temporary injunction application came to be rejected. The appellant thereupon filed a Misc. Civil Appeal (wrongly captioned as Regular Civil Appeal) challenging the order of rejection of temporary injunction application and in that Misc. Civil Appeal the appellant filed the aforesaid M.J.C. claiming a relief of temporary injunction. By the aforesaid order dated 03-03-2003 the Additional District Judge, Buldhana rejected the said application which rejection is impugned in this appeal against order.

3. A query was made to the learned counsel for the appellant as to how the appeal is maintainable. The learned counsel for appellant submitted that the appeal is maintainable under Order 43, Rule l(r) Civil Procedure Code as the order impugned in this appeal is an order rejecting the application for the grant of temporary injunction.

4. The provision of Order 43, Rule l(r) (as per Bombay Amendment) reads as below --

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

(r) An order under Rule 1, Rule 2, Rule 4 or Rule 10 and Rule 11 of Order 39, Civil Procedure Code.

The appeals against the orders enumerated in Order 43 lie under the provision of Section 104 Civil Procedure Code which is a substantial provision for filing appeal against order. Then there is a further limit to an appeal against the order passed in an appeal under Section 104 Civil Procedure Code. That is under Sub-section (2) which speaks that no appeal shall lie from any order passed in appeal under this section. The provision of Section 104 Civil Procedure Code speaks about the orders from which the appeal lies, but Sub-section (2) makes an exception to that provision restricting the filing of appeal against the order passed in appeal under that section. Obviously the order impugned in the present appeal was passed by the Additional District Judge Buldhana in Misc. Civil Appeal which was under Section 104 Civil Procedure Code. The said order therefore cannot be further challenged by way of Second Appeal in view of the bar put by the provision of Sub-section (2) of Section 104.

5. The learned counsel for the appellant submitted that the order referred to in Sub-section (2) of Section 104 is a final order that would be passed in appeal against which no further appeal would lie. According to learned counsel in the present case the order is an interim order so the appeal against such order would be maintainable under Order 43, Rule (1)(r) Civil Procedure Code. It is not possible for me to accept this submission. The wording any order appearing in Sub-section (2) would include even the interlocutory order that is passed in an appeal under Section 104, Civil Procedure Code and against such order also the-further appeal would not lie. Previously the revisions used to be filed against such orders; but now that remedy is not available in view of the amended provision of Section 115, Civil Procedure Code.

6. I am fortified in the proposition that no appeal lies even against the interlocutory orders passed in an appeal under Section 104, Civil Procedure Code by the decision in Hart Damu and Ors. v. Pedro Pereira and Ors. reported in AIR 1975 Goa, Daman & Diu 75, and also the cases cited by the learned AGP Shri Yogesh Mandape; 1) Shobha Dinesh Supare and Anr. v. Dinesh Namdeorao Supare 1993 Mh.L.J. 910; 2) New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation and Ors., ; and 3) Resham Singh Pyara Singh v. Abdul Sattar, 1996(1) Civil L.J 854.

7. In the case of Hari Damu and Ors. v. Pedro Pereira and Ors. an order of ad interim injunction was passed by the Appellate Court during the pendency of appeal against the dismissal of application for temporary injunction by the Trial Court. It was held that in view of the bar created in Section 104(2), Civil Procedure Code no Second Appeal against the order of ad interim injunction passed by the Appellate Court in the appeal, would lie. In this cited case the case of Cheltappan v. K.P. Varghese, was relied upon. In that case also the impugned order was passed by the Lower Appellate Court in an appeal preferred before the District Judge against an order of the subordinate Judge disposing of an application for temporary injunction pending the hearing of the suit. Kerala High Court held that the incidental order passed by an appellate Court in interlocutory applications moved in an appeal before it are "orders passed in appeal" within the scope of Section 104(2), Civil Procedure Code and cannot therefore be appealed against and that an appeal to the High Court against an interlocutory order passed by the District Judge in appeal under Section 104 read with Order XLIII, Civil Procedure Code was incompetent and liable to be dismissed in limine.

In Shobha Dinesh Supare v. Dinesh Namdeorao Supare; in a suit for declaration and injunction, the plaintiff had filed an application under Order 39, Rules 1 and 2 for the grant of temporary injunction restraining the defendants from interfering or disturbing the plaintiffs business. The trial Court had rejected the said application against which the plaintiff preferred miscellaneous appeal under Order 43, Rule l(r) and Section 104, Civil Procedure Code. In that Misc. Civil Appeal the plaintiff filed an application under Order 39, Rules 1 and 2 praying for temporary injunction pending the Misc. Civil Appeal. The Appellate Court granted temporary injunction during the pendency of the said appeal. The defendant then preferred an appeal against the order of the Appellate Court granting temporary injunction. This appeal was purported to be filed under Order 43, Rule 1(r), Civil Procedure Code. It was held that the provisions of Section 104(2) and 105 of the Civil Procedure Code make it clear that no appeal shall lie from any order passed in appeal under Section 104(1). It was further held that having regard to the bar created by Sub-section (2) of Section 104 and by Section 105 the appeal from order was not maintainable. The appeal from order was however permitted to be converted into revision. (In the present case as already stated above the remedy of filing revision is not available in view of the amended provision of Section 115, Civil Procedure Code).

In New Kenilworth Hotel (P) Ltd. v. Orissa Stale Finance Corporation and Ors., a Letters Patent Appeal was filed against the order passed by the Single Judge in an appeal that was preferred against the order of status quo passed by the Trial Court in an injunction suit. It was observed as follows:

"Against an interlocutory order, an appeal has been provided under Section 104(1) of the Code read with Order XLIII, Rule 1. In respect of interim injunction, it is covered by Order XLIII, Rule l(r). In this case the order of status quo was passed in an application filed under Order XXXIX, Rule 1 of the Code. Therefore, it is not in dispute that it is an order passed by the Civil Court under Order XXXIX, Rule 1 appealable - under Order XLIII, Rule l(r) of the Code. Sub-section (2) of Section 104 specifically prohibits Second Appeal against such an order postulating that "No appeal shall lie from any order passed in appeal under this section"."

It was held that the appeal was barred in view of the provisions of Section 104(2), Civil Procedure Code. In this cited case the case of Resham Singh Pyara Singh v. Abdul Sattar (1996)2 SCC 49 (also reported in 1996(1) Civil L J 854) was relied upon.

In Resham Singh Pyara Singh v. Abdul Sattar, an appeal was filed before the Single Judge of the High Court under Order 43, Rule l(r) as provided in Sub-section (1) of Section 104, Civil Procedure Code against the order of the City Civil Court. In that appeal the learned Single Judge of the High Court directed the Commissioner to demarcate the lands in exclusive possession and enjoyment of the petitioner within the compound wall. Against this order the petitioner filed Letters Patent Appeal contending that the order of the learned Single Judge amounts to granting mandatory temporary injunction. It was held that by the operation of Sub-section (2) of Section 104 no further appeal would lie from any order passed in appeal that was preferred under Sub-section (1) of Section 104 Civil Procedure Code.

8. In the above view of the matter the present appeal filed by the appellant deserves to be dismissed and the same is dismissed.

At this stage the learned counsel for the appellant seeks liberty to pursue appropriate remedy. The appellant is at liberty to pursue appropriate remedy permissible by law.