The main legal point established is that the appeal against rejection of application under Rule 2-A of Order 39 of the Code of Civil Procedure is not maintainable.

Rule returnable forthwith. Heard finally by consent of the parties.

2. When this appeal was taken up for final hearing, learned Counsel for the respondents raised preliminary issue about the maintainability of the appeal and since the issue was contested, the following question of law is framed:

Whether appeal under Order 43, Rule l(r) against an order rejecting an application under Order 39, Rule 2-A of the Code of Civil Procedure is maintainable additionally with the help of Section 104(l)(h) of the Code of Civil Procedure?

3. Learned Counsel for the respondents argued that such appeal was maintainable prior to the coming into force of Bombay High Court Amendment effective from 05-09-1983 but after the said amendment specifically appeal against order under Order 39, Rule 2-A of the Code of Civil Procedure has been deleted and therefore appeal is not maintainable. Referring to Section 104(l)(h) of the Code of Civil Procedure, he argued that the same would also not apply as that appeal is against only orders of detention and in the instant case there was no order of detention but there was rejection of the application itself under Order 39, Rule 2-A of the Code of Civil Procedure.

4. Per contra, Advocate Shri. Shrivastava for the applicant vehemently opposed the submission made by Counsel for respondents. He relied on the following decisions.

1. 1992 Mh.L.J. 1503 (Dry Chillies Brokers Association Vs. Dnyaneshwar Chamat and others).

2. 1993 MI}."L.J. 1435 (Harivilas Madhavprasad Ruia Vs. Viraf Ardeshir Udwadia and others).

3. 2002(3) Mh.L.J. 448: [2002(2) ALL MR 757] (Vittha.1 Shriram Kharbadkar Vs. Pandurang Irbhanji Kadu).

4. 2003(3) ALL MR 675 (Sopan S/O. Jijaji Bhakre Vs. Uttamrao TolajiBhakre).

5. He also relied on the provision of Section 104(l)(h) of the Code of Civil Procedure and argued that when the appeal is provided under 104(1)(h) of the Code of Civil Procedure against an order of arrest and detention upon adjudication of breach of injunction, there is no reason why it should be interpreted that there is no appeal against the order, rejecting such application under Order 39, Rule 2-A of the Code of Civil Procedure. According to him, such narrow interpretation put forward by the Counsel for the respondents would not advance the cause of justice and the interpretations which do not advance the cause of justice are required to be discouraged.

6. Having heard Counsel for the rival parties on the above questions of law, in the first place, dealing with the judgments cited by the Counsel for the applicant, I must say that those judgments have absolutely no application in respect of the question involved in the present matter. Hence, I do not find any need to refer to them.

7. Now coming to the relevant provisions, it is seen that the Code of Civil Procedure, 1908 came to be amended by the Central Act 104 of 1976 and Clause 'r' of Rule 1 of Order 43 came to be amended by inserting "Rule 2-A" whereby the order passed under Rule 2-A of Order 39 became appealable. Subsequent thereto, in so far as State of Maharashtra is concerned, Clause 'r' came to be substituted by Bombay High Court Notification dated 05-09-1983, as under:-

"An order under Rule 1, Rule 2, Rule 4, Rule 10 or Rule 11 of Order 39."

It is apparent that in this substituted Clause 'r' , Rule 2- A of Order 39 is not mentioned, though it was so inserted in Clause 'r' by Amending Act 104 of 1976, making thereby the order passed under Rule 2-A of Order 39 appealable.

The substantive provision which deals with appeals from orders is contained in Section 104 of C.P.C. Section l04(l)(h) reads thus:

"Orders from which appeal lies:

(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

(ff)…..

(ffa)….

(g)….

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person e