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High Court Of Calcutta
Bhaskar Bhattacharya
RAVI MAHARIA - Appellant
Versus
RELIANCE PETROCHEMICALS LTD. - Respondent
C. A. N. 6713 Of 1999
Decided On : 01/19/2000
{'KEYWORD': 'INJUNCTION ORDERS', 'SUBJECT': 'Appealability of Orders Relating to Modification of Injunctions', 'ACT SECTION LIST': ['ORDER 39 RULES 1 AND 2', 'ORDER 43 RULE 1', 'ORDER 47 RULE 1', 'SECTION 151'], 'SUMMARY': 'The court held that an order passed on an application seeking modification of an interim injunction order under Order 39 Rules 1 and 2 of the Code of Civil Procedure (CPC) is appealable under Order 43 Rule 1(r) of the CPC. The court clarified that merely describing an application as one under Section 151 of the CPC does not make the order passed on it non-appealable if the relief sought falls within the ambit of Order 39 Rules 1 and 2. The court emphasized that litigants cannot circumvent the provisions of the CPC by wrongly labeling an application to deprive the other party of their right to appeal.'}
Fact of the Case:
The petitioner filed a suit for declaration and injunction, and obtained an ad interim injunction order under Order 39 Rules 1 and 2 of the CPC. Subsequently, the petitioner filed another application under Section 151 of the CPC seeking modification of the injunction order. The trial court refused to modify the injunction order. The petitioner filed a revision petition against the trial court's order, which was dismissed by the High Court on the ground that it was appealable under Order 43 Rule 1 of the CPC. The petitioner then filed an appeal against the High Court's order, which was also dismissed by a Division Bench of the High Court. The petitioner then filed an application for recalling the High Court's order dismissing the revision petition.
Finding of the Court:
The High Court held that the order passed on the application for modification of the injunction order was appealable under Order 43 Rule 1(r) of the CPC. The court observed that the relief sought in the application fell within the ambit of Order 39 Rules 1 and 2 of the CPC, and the fact that the application was wrongly described as one under Section 151 of the CPC did not make the order non-appealable. The court further held that a subsequent decision of a different bench of the High Court taking a different view on the appealability of the order did not furnish a ground for recalling the earlier order.
Issues: 1. Whether an order passed on an application for modification of an interim injunction order under Order 39 Rules 1 and 2 of the CPC is appealable under Order 43 Rule 1(r) of the CPC? 2. Whether the fact that an application is wrongly described as one under Section 151 of the CPC makes the order passed on it non-appealable?
Ratio Decidendi: 1. An order passed on an application for modification of an interim injunction order under Order 39 Rules 1 and 2 of the CPC is appealable under Order 43 Rule 1(r) of the CPC. 2. Merely describing an application as one under Section 151 of the CPC does not make the order passed on it non-appealable if the relief sought falls within the ambit of Order 39 Rules 1 and 2.
Final Decision: The High Court dismissed the application for recalling the earlier order dismissing the revision petition.
( 1 ) THIS is an application for recalling my order dated June 24, 1999 passed in A. S. T. No. 2244 of 1999 by which I rejected the said revisional application under section 115 of the Code of Civil Procedure preferred against Order No. 9 dated June 3, 1999 passed by the learned Judge, 3rd Bench, City Civil Court, Calcutta in Title Suit No. 2056 of 1998 as not maintainable.
( 2 ) THE present petitioner instituted the aforesaid Title Suit No. 2056 of 1998 for declaration and injunction and in the said suit filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure thereby praying for the following reliefs :-" (A)mandatory injunction be issued directing the opposite party Nos. 1 and 2 to issue a debentures certificate in the name of the petitioner after transferring the same from the earlier holders of the Debentures. (b)temporary injunction be issued restraining the Opposite Party Nos. 1 and 2 from issuing any debenture and/or paying the financial and other benefits to any person other than the petitioner in respect of the said debentures and to stop transfer of the fresh debenture certificate issued by the opposite Party No. 2 to the transferors. (c)ad-interim Order in terms of prayer (a) and (b ). (d)cost of the application. (e)such other order or orders as the learned court may deem fit and proper. "
( 3 ) ON such application, the learned trial Judge on November 5, 1998 issued notices upon the opposite parties to show cause why the prayer of the petitioner should not be granted and further passed an ad interim order"directing the parties to the suit to maintain status quo in respect of issuance of debentures against the debentures in the suit until further order. "
( 4 ) SUBSEQUENTLY, the petitioner filed another application described as one under section 151 of the Code of Civil Procedure thereby praying for modification or variation of the injunction order dated November 5, 1998 and in the said application prayed for fresh order "restraining the defendant No. 2-Company from issuing any new debentures to any third party except the petitioner and from transferring the debentures in any name other than the plaintiff in respect of the fresh debenture certificates issued by defendant No. 2 to the transferors in lieu of the debtntures in the suit. "
( 5 ) ON such application the learned trial Judge by Order No. 9 dated June 3, 1999 refused to pass any order which was the subject matter of the revisional application being A. S. T. No. 2244 of 1999.
( 6 ) ON June 24, 1999, I refused to entertain the said revisional application on the ground that although the order impugned was passed on an application described as one under section 151 of the Code, the revisional application was not maintainable inasmuch as the said order was appealable under Order 43 Rule 1 of the Code.
( 7 ) WHILE passing such order; I gave liberty to the learned advocate for the petitioner to take back certified copy of the order impugned on furnishing a xerox copy thereof.
( 8 ) AFTER the aforesaid order was passed, the learned advocate for the petitioner took back the certified copy and preferred an appal before this court being F. M. A. T. No. 2143 of 1999 and a Division Bench of this court by Order dated July 13, 1999 dismissed the said appeal as not maintainable as the petitioner "on his own showing" filed an application under section 151 of the Code for modification of the order of ad interim injunction. The Division Bench observed that "such an order per se was not an appealable one". Moreover, the Division Bench continued, "from the prayer portion of the application it is evident that such an application does not also come within the purview of Order 39 Rule 4 of the Code of Civil Procedure and on that ground too, the order is not an appealable one. "
( 9 ) AFTER the passing of the aforesaid order of the Division Bench dismissing the appeal, the present application for recalling my earlier order has been fi
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