An order rejecting the petition for injunction under Order 39 rule 1 and 2 of the Code of Civil Procedure is an appealable order.

Bhagabati Prosad Banerjee J.: This is an appeal against the order dated 21st September 1991 passed by the learned District Judge, Purulia in Misc. Appeal No. 20 of 1991 whereby the prayer for ad interim injunction was considered and refused in an appeal which was preferred against the refusal to grant injunction by the learned Trial Judge by the order dated 14th September 1991 in Title Suit No. 123 of 1991.

2. The Stamp Reporter of this court put a note in the file as to the maintainability of this appeal and called upon this court to decide whether the present appeal would lie against the order of the learned District Judge refusing prayer for ad interim injunction.

3. The plaintiff/appellant filed a suit for declaration and also filed a petition under Order 39 Rules 1 and 2 read with s. 151 of the Civil Procedure Code for temporary injunction against the defendants restraining them from interfering with the possession of the plaintiff/appellant over the suit property till the disposal of the suit. The said prayer was considered by the Trial Court and the Trial Court after hearing the plaintiff/appellant and the defendant/opposite parties disallowed a prayer for injunction on contest by the order dated 14th September 1991. The Trial Court refused the injunction and vacated the order for status quo which was passed earlier.

4. Being aggrieved by and dissatisfied with the order of the learned Trial Judge disallowing the prayer for ad interim order of injunction and vacating the order for status quo, before the court below in Misc. Appeal which was tiled to that behalf, the appellant filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure read with s. 151 of the Code of Civil Procedure for injunction during the pendency of appeal and also prayed for ad interim injunction pending disposal of the said injunction petition. The court below by the order dated 21st September 1991 rejected the prayer for ad interim injunction. This is the appeal against the order passed by the court below refusing the prayer for ad interim injunction. The question is whether the order rejecting the petition for injunction under Order 39 rule 1 and 2 is appealable order or not.

5. Order 43 rule 1 of the Code of Civil Procedure provides the order from which appeal would lie under s. 104 of the Code of Civil Procedure. Order 43 rule 1 sub-rule (r) provides that an order under rule 1, rule 2, rule 4 or rule 10 of Order XXIX is appealable.

6. This is an appeal against an order rejecting the petition under Order 39 rule 1 and 2 by the Lower Appellate Court. The power of the Trial Court as well as Lower Appellate Court to grant injunction either pending disposal of the suit or during the pendency of the suit are utmost similar, inasmuch as, in both the cases whether in the pendency of the suit or the appeal the court is to consider on the very self-same condition whether injunction should be granted or not. The point is raised in this case where an order has been passed under Order 39 rule 1 and 2 of the Code, appeal lies and it does not lie when it is rejected and secondly, whether rejection of prayer for injunction under Order 39 rule 1 and 2 of the Code by the Lower Appellate Court is also an order within the meaning of Order 39 rule 1 and 2 of the Code, so as to attract clause (r) of sub rule (1) of Order 43 of the Civil Procedure Code.

7. In Madhu Mian vs. Rajaram Barai reported in AIR 1943 Cal. page 177, a Division Bench of this Court held that "Order/rejecting application under s. 26(g)(5) falls under s. 26(g)(6) and consequently, it has the force of a decree and is appealable as such in accordance with the provisions of Civil Procedure Code. As a second appeal lies in such a case, a revision is incompetent. In this case, the scope of Clause (r) of rule 1 of Order 43 of the Civil Procedure Code was considered and held that "under Order 39 rule 1 the court can make an order granting temporary injunction restraining the defendan