JUDGMENT - V.S. SIRPURKAR, J. :--Being aggrieved by the refusal to decide the application or to grant any interim relief on the application under Order XXXIX, Rules 1 2 of the Civil Procedure Code, the appellants/plaintiffs have come up in this appeal. An injunction application has been filed by the plaintiffs. However, on the date when it was fixed i.e. on 9-11-1993 it seems that the learned Counsel for the applicants was present before the trial Court. However, the only order which is passed on the application of the plaintiffs is as follows :-

"Plaintiff and his advocate absent when called on 8-9-1993, 6-10-1993 and also on 27-10-1993. It appears that the plaintiff has no urgency of the matter. Defendant and his Counsel are also absent.

ORDER : The application be kept for hearing with main suit."

2. Being aggrieved by this order, the plaintiff filed the present appeal under Order XLIII, Rule 1(r) of the Civil Procedure Code. Thus the Court has neither allowed the application nor has it refused the same on merits. Therefore, the question is whether this order could be said to be the order covered under Order XLIII, Rule 1(r) of the Civil Procedure Code. Order XLIII, Rule 1(r) runs thus :-

"Order XLIII, Rule 1 : 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, Rule 10 or Rule 11 of Order XXXIX ;

....."

It is, therefore, clear that in order to be able to file an appeal the impugned order must have been passed under the provisions of Order XXXIX, Rules 1, 2, 4, 10 or 11. Rules 4, 10 11 are not relevant here. It will have to be seen whether the present order is covered under Rule 1 of Order XXXIX. It is now a settled position in law that an appeal lies against the order granting as well as refusing an injunction. There was a difference of opinion on this issue but now by catena of case law the position is settled that an appeal would lie not only against an order granting injunction but also against an order refusing the same as even that order could be described as an order passed under Order XXXIX, Rule 1 or 2 as the case may be.

3. What is in issue today before this Court is whether an order putting off passing the order of injunction comes within the purview of Order XXXIX, Rule 1 or 2. In the present case the Court has not even considered the application and has put off its consideration to a final stage of the suit. Shri A.D. Vyawahare, the learned Counsel for the appellants, points out that the refusal to pass any orders on the application amounts to the refusal to grant injunction. He argues that his remedy is only by way of an appeal under Order XLIII, Rule 1(r) and not by way of a civil revisions application under section 115 of the Civil Procedure Code. In support of his contention, Shri Vyawahare relies on the ruling by the Sikkim High Court in the case of (Ashok Tshering Lama v. Tshering Wangdi)1, A.I.R. 1982 Sikkim 20. In that case, the learned Single Judge of the Court has held that where an application for ex-parte injunction is made and the Court refused to grant such an injunction and instead issues notice of the application to the opposite party, the order of refusal would be an order under Rule 1 or Rule 2 as the case may be and not under Rule 3 and hence it would be appealable under Order XLIII, Rule 1(r). In the present case, Shri Vyawahare points out that the trial Court has refused to pass any order or injunction meaning thereby that during the pendency of the suit the injunction is refused to the applicants. He appears to be right.

4. In putting off the consideration of the application for grant of injunction to a final stage of the suit, the Court has in fact not passed any order crystallizing the rights of the parties during the pendency of the suit. The plaintiffs in the instant case were apprehending danger to their property and more particularly to their possession and had, therefore, sought for an order pr

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