2011 Supreme(Cal) 978

High Court Of Calcutta
Harish Tandan, J.
Dependra Nath Basu - Appellants
Vs
Eastern Railways - Respondents
C.O. No. 325 of 2007
Decided on: July 27, 2011

The use of a comma in a statute does not necessarily mean that an independent appeal would lie against each of the considerations under that provision.

Headnote:

APPEAL - MAINTAINABILITY - SINGLE APPEAL - SECTION 104, ORDER 43 RULE 1(R), ORDER 39 RULES 1, 2 AND 4 CPC - Whether a single appeal against an order by which two applications namely an application for injunction under Order 39 Rule 1 and 2 of the Code and an application for vacating the ad interim order filed under Order 39 Rule 4 of the Code were disposed of is competent. Held, yes.

Fact of the Case:

The petitioner filed a suit for declaration that the opposite parties cannot dispossess him in respect of a hoarding, glow sign and kiosks without due process of law and that the agreement between the petitioner and the opposite parties is to be renewed on the prayer of renewal and a decree for permanent injunction restraining the opposite parties from interfering with the right of the petitioner to display the advertisement from the said hoarding, glow sign and kiosks. An application for injunction is taken out by the petitioner in the said suit for an order restraining the opposite parties from interfering with the rights of the petitioner to display advertisement from the said hoarding, glow sign and kiosks and also from creating any third party interest in respect of the schedule property. An ad interim order of injunction was passed by the trial court. The opposite parties filed an application under Order 39 Rule 4 of the Code of Civil Procedure for setting aside the ad interim order. However, affidavits were exchanged by the parties in both the applications viz. an application for injunction filed under Order 39 Rule 1 and 2 of the Code and an application for vacating an ad interim order filed under Order 39 Rule 4 of the Code. Both the applications were taken out and were disposed of by the trial court in single order by rejecting an application under Order 39 Rule 4 filed by the opposite parties and allowing an application for injunction filed by the petitioner. The opposite parties assailed the said order in an appeal filed under Order 43 Rule 1(r) of the Code before the district Judge. The petitioner filed an application under section 151 of the Code challenging the maintainability of a single appeal. The Court of Appeal below dismissed the said application by the impugned order.

Finding of the Court:

The court held that the use of a comma in Order 43 Rule 1(r) after each rule of Order 39 does not necessarily mean that an independent appeal would lie against each of the considerations under that sub-rule. The court further held that the legislature's intent was not to provide for independent appeals against each of the rules mentioned in Order 43 Rule 1(r), as evidenced by the fact that Order 9 Rule 9 and Order 9 Rule 13 were placed in different rules, and Order 21 Rule 34 and 72 or 92 of Order 21 were placed under different sub-rules.

Issues: Whether a single appeal against an order by which two applications namely an application for injunction under Order 39 Rule 1 and 2 of the Code and an application for vacating the ad interim order filed under Order 39 Rule 4 of the Code were disposed of is competent.

Ratio Decidendi: The court relied on the following principles in reaching its decision: * Punctuation, including commas, is a minor element in the construction of a statute and cannot be relied upon as an infallible guide to its meaning. * The object and purpose of the Act, the context in which the expression is used, and the consequences of accepting a particular interpretation of the provision are more important factors in determining the meaning of a statutory provision. * The legislature's intent is not to provide for independent appeals against each of the rules mentioned in Order 43 Rule 1(r), as evidenced by the fact that Order 9 Rule 9 and Order 9 Rule 13 were placed in different rules, and Order 21 Rule 34 and 72 or 92 of Order 21 were placed under different sub-rules.

Final Decision: The court dismissed the revisional application, holding that the single appeal against the order disposing of the two applications was competent.