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IN THE HIGH COURT OF BOMBAY
Karnik D.G., J.
Rajendraprasad R. Singh others .... Appellants.
Versus
Municipal Corporation of Greater Bombay.... Respondents.
C.A.ST. No. 628 of 2003 in A.O. No. 14 of 2003 with Appeal From Order No. 86 of 2003 with Appeal From Order (ST) No. 39256 of 2001 with Appeal From Order Nos. 1013, 1024, 1027 of 2002 with Appeal From Order Nos. 1, 10, 35, 39, 61, 65 of 2003 with Appeal From Order (ST) No. 48313 of 2002 with Appeal From Order (ST) No. 1502 1503 of 2003, decided on 24-1-2003.
Advocates appeared :
A.A. Kumbhakoni, in C.A.ST. No. 628/2003 in A.O. No. 14/2003, for appellant.
Ms. V. Khatu, in C.A.ST. No. 628/2003 in A.O. Nos. 14/2003, 39256/2001, 1013/2002 10/2003, for respondents.
S.C. Dharmadhikari, V.S. Kapse, in A.O. No. 86/2003, for appellants.
N.V. Walawalkar, Ms. V. Khatu in A.O. No. 86/2003, for respondents.
J.J. Shah, in A.O. (ST) No. 39256/2001, for appellants.
P.G. Lad, in A.O. No. 1013/2002, for appellant.
S.S. Redekar, in A.O. No. 1013/2002, for appellant.
Ms. T. Rangenekar, in A.O. Nos. 1027 48313/2002, for appellant.
K.D. Shah, in A.O. No. 1/2003, for appellant.
M.D. Patil, in A.O. No. 1/2003, for respondent.
A.S. Khatib, in A.O. No. 10/2003, for appellant.
P.V. Nichani Co., in A.O. No. 39/2003, for appellant..
G.C. Singh, in A.O. No. 61, 65/2003, for appellant.
Ms. K. Tavade, in A.O. No. 61/2003, for respondents.
D.K. Vyas, in A.O. No. 82/2003, for appellant.
R.K. Desai, in A.O. (ST) Nos. 1502 1503/2003, for appellant.
(1) Whether an order passed by the trial Court to issue notice to the defendants and thereby declining to grant ex parte ad interim injunction is appealable?
(2) If yes, when can an Appellate Court interfere in the discretion exercised by the trial Court in refusing to grant ad interim injunction and/or issuing notice?
All these appeals arise out of various orders passed by the trial Court declining to grant ex parte ad interim injunction and/or directing issuance of notices to the defendant. The wording of the orders is not uniform. However, words used in the various orders are like:
(i) Issue notice to the defendants.
(ii) Notice of motion made returnable on....
(iii) No case of urgency made out for grant of ex parte ad interim injunction. Issue notice to the defendants.
(iv) No prima facie case made out for grant of ex parte ad interim injunction. Issue notice to the defendants.
Real substance of these orders is that the Court declined to grant an ex parte ad interim relief and/or postponed consideration of grant of ad interim relief till service was effected on the other side. Such orders were passed even in cases where defendants had appeared suo motu with the only difference that the instead of directing issuance of a notice the Court had made the motion returnable on a particular day. As all the learned Counsel submitted and rightly so, that the form of the order is not material but, the real substance of those orders being that the Court declined to grant ex parte ad interim injunction all the appeals were heard together.
2. It is well settled that the right of an appeal is a creature of a statute and unless the statute provides for an appeal, no appeal shall lie against any order passed by any Court or any authority. Learned Counsel for the respondents contended that the statute does not provide for an appeal against an order declining to grant ad interim injunction and as such the order is not appealable.
3. Clause (i) of sub-section (1) of section 104 of the Code of Civil Procedure provides that an appeal shall lie against any order from which an appeal is expressly allowed by rules. Rule 1 of Orders 43 of the Code of Civil Procedure confers a right of appeal against orders mentioned therein and reads:
(1) An appeal shall lie from the following orders under the provisions of section 104, namely :-
(a) ..........
(b) .........
(r) An order under Rule 1, 2 Rule 2-A, Rule 4 or Rule 10, Order 39.
(s) ........
(unnecessary part omitted)
Thus, an appeal is expressedly provided against an order of injunction passed under Rule 1 or 2 of Order 39. Learned Counsel for the respondents contended that an order of issuance of the notice is passed under Rule 3 of Order 39 and no appeal lies against it.
4. In (S.D. Annadeshik v. M.R. Govindram)1, reported in A.I.R. 1924 Madras Page 857, in a short cryptic judgment, the Madras High Court held that the order of a subordinate Judge merely ordering issuance of notice as required by Rule 3 of Order 39 is not appealable under Clause (r) of Rule 1 of Order 43. The said view has thereafter been followed by many High Courts in this country. In (Iqbal Singh and others v. Chanan Singh and others)2, reported in A.I.R. 1966 Punjab 165, in (Khusilal and others v. Gorelal and another)3, reported in A.I.R. 1986 Madhya Pradesh 47 and in (Bidulata Das v. Braja Bihari Palit and others)4, reported in A.I.R. 1993 Orissa 78, Punjab, Madhya Pradesh and Orissa High Courts have held that the order passed by the Court declining to grant ex parte ad interim injunction is essentially an order passed under Rule 3 of Order 39 and is therefore not appealable. So far as the Allahabad High Court is concerned, in (H.B.S. v. Rambihari and others)5, A.I.R. 1951 Allahabad 8 two learned Judges of the Division Bench differed on the issue whether an order of a trial Judge declining to grant an ex parte ad interim injunction was appealable or not. T
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