(1.) THIS application under Article 227 of the Constitution of India is directed against two orders being Order No. 1 dated 29th September, 2007 and Order No. 2 dated 1st October, 2007 both passed by the learned additional District Judge at Barrackpore in Misc. Appeal No. 86 of 2007.

(2.) THE defendant/respondent in the said appeal is the petitioner before this Court.

(3.) THE plaintiffs/opposite parties filed a suit tor declaration of title and for injunction before the learned Trial Judge. In the said suit, the plaintiffs/opposite parties filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, inter alia, praying for temporary injunction.

(4.) SINCE the prayer for ad interim injunction of the plaintiffs/ appellants/opposite parties was rejected by the learned Trial Judge, the plaintiffs/opposite parties filed the aforesaid appeal before the learned additional District Judge at Barrackpore.

(5.) THE said appeal which was registered as Misc. Appeal No. 86 of 2007 was admitted for hearing on 1st October, 2007 vide Order No. 2.

(6.) THE learned Appeal Court, however, refused to grant any ad interim injunction as prayed for by the appellants/opposite parties herein in the said appeal by holding, inter alia, that grant of injunction as prayed for at this stage would ultimately result in giving final relief to the plaintiffs/appellants/opposite parties without giving any opportunity to the defendant/ respondent/petitioner. The plaintiffs/appellants/opposite parties were, however, directed to serve notice upon the defendant/respondent/petitioner who was directed to show-cause within seven days from the date of receipt of the notice as to why the plaintiffs prayer for injunction shall not be allowed.

(7.) THEREAFTER, the suit was transferred for trial to the original Side of this Court in pursuance of an order passed by learned Single Judge of this court taking up interlocutory matters in the original Side, on 16th January, 2008 under Clause 13 of the Letters Patent (1865).

(8.) IN such context, the instant revisional application has been moved by the defendant/respondent/petitioner challenging the propriety of the order of admission of the appeal as well as the legality of continuation of the said appeal before the learned Appeal Court, after the transfer of the said suit to the Original Side of this Court in the manner as aforesaid.

(9.) MR. Roy, learned Advocate, appearing for the petitioner, firstly submitted that refusal to grant ad interim injunction with the consequential direction for issuance of notice upon the defendant/respondent/petitioner is not appealable under Order 43 Rule 1 (r) of the Code of Civil Procedure. According to Mr. Roy, such an order of refusal to grant ad interim injunction with consequential direction for service of notice upon the raspondent, is essentially an order passed under Order 39 Rule 3 of the Code of Civil procedure and not under Order 39 Rule and 2 of the Code of civil Precedure. to. Thus, Mr. Roy submitted that since an order passed under Order 39 Rule 3 is not appealable under Order 43 rule 1 (r) of the Code of Civil procedure, the instant appeal which was filed by the plaintiffs/appellants/ opposite parties herein before the learned Appeal court, is not maintainable.

(10.) IN support of such submission, Mr. Roy relied upon various decision of different High Courts which are as follows : (i) Khusilal and Ors. v. Gorelal and Anr. reported in air 1986 Madhya Pradesh page 47, (ii) Gajraj Singh v. Ramkumar and Ors. reported in air 1992 SC 316, (iii) Lakhai v. Ram Niwas and Ors. reported in AIR 1987 Allahabad page 345 and (iv) Smt. Urmila Devi and Ors. v. Nagar Nigam, Lucknow reported in air 2003 Allahabad page 158.

(11.) IN all those decisions, it was uniformly held by different High courts that when the learned Trial Jduge having not been satisfied with the materials, refused to pass an ex parte temporary injunction, but directed issue of notice to the