B.D. Agarwal, J.

1. In both the revision applications filed under Rule 36A of the Rules for Administration of Justice and Police in the Khasi and Jaintia Hills, 1937 read with Article 227 of the Constitution of India, the following short but substantial question of law has been raised:

Whether an order of trial Court directing issuance of notice to the Defendants before granting temporary or ad interim injunction is appealable

2. Heard Shri N. Khan, learned Counsel for the Petitioners and Shri A. Mukherjee, learned Counsel for the sole Respondent.

3. Both the writ applications are being disposed of by this common judgment and order since the question posed before this Court is based on identical facts. As could be gathered from the documents filed with the revision applications, the Petitioners were the Defendants under one David Nichols Roy in respect to shop houses situated at Barabazar Road, Shillong. Suddenly they received a pleader's notice on behalf of the Respondent asking Petitioners' to vacate the tenanted premises on the ground that the building, wherein the shops of the Petitioners were situated, required immediate repairing and reconstruction. In the said notice the Respondent claimed himself to be the owner of the landed property, named and styled as "Nichols Roy Property". Hence title suits were filed by the Petitioners in the Court of learned Additional Deputy Commissioner. East Khasi Hills, Shillong seeking a declaration that the Petitioners were bona fide tenants of the suit premises and also, inter alia prayed for permanent injunction against the Respondent not to interfere with their possession. Along with the plaint, applications under Order 39, Rules 1 and 2 read with Section 151of the Code of Civil Procedure, 1908 were also filed seeking ad interim injunction so as to restrain the opposite party not to disturb the peaceful possession of the Petitioners.

4. As usual both the suits and applications for injunction were registered, however, instead of granting any ad interim injunction, the trial Court preferred to issue notice upon the Defendants/opposite parties before granting interim restrained order. The order is as such:

17-10-2009: CR to put up today.

Perused the CR.

Let notice be issued to Defendants.

Fix 30-11-2009.

4.1. The aforesaid order passed in Title Suits was also made applicable in the Misc. Case for injunction.

5. Being aggrieved with the aforesaid orders the Plaintiffs preferred appeal before the learned Additional Deputy Commissioner. Shillong. However, the appeals have been dismissed vide impugned orders dated 30-11-2009 passed in FAO No. 7(T)/2009 and FAO 6(T)/2009 respectively. In the aforesaid impugned orders the appellate Court has held that the trial Court neither granted injunction nor refused the prayer of injunction and. as such, the orders are not appealable under Order 43, Rule 1(r) Code of Civil Procedure. These orders of appellate Court are under challenge before me.

6. Shri Khan, learned Counsel for the Petitioners submitted that issuance of notice upon the Defendants before passing temporary injunction amounts to refusal to grant ad interim injunction, prayed for under Order 39, Rules 1 and 2 of the Code of Civil Procedure and as such, order are also appealable under Order 43, Rule (r) Code of Civil Procedure. Learned Counsel for the Petitioners also contended that Rule3 of Order 39 only lays down the procedure for grant of ad interim or temporary injunction without notice and, this being not a substantive law for grant of injunction, it has to be presumed that an 'order of notice' would mean that the Court has declined to grant ex parte injunction under Order 31, Rules 1 and 2 of the Code of Civil Procedure and the same is appealable. In support of this submission, learned Counsel for the Petitioners relied upon the judgment of the Hon'ble Supreme Court rendered in the case of A Venkatasubbiah Naidu v. S. Chellappan AIR 2000 SC 3032, a judgment of Full Bench of Gauhati High Court