An aggrieved party has the right to appeal against an ad-interim injunction under Order XLIII Rule 1 of CPC, ensuring judicial compliance with procedural mandates.

Order :

1. The instant writ petition has been filed while challenging the order dated 02.09.2020 passed by District Judge, Bhilwara, whereby, the appeal filed by the petitioner under the provisions of Order XLIII Rule 1 (r) of CPC challenging the order dated 20.08.2020 passed by the learned trial, Bhilwara, in a suit filed by the petitioner/plaintiff has been dismissed. By the said order, the trial court granted an ad-interim temporary injunction while allowing the defendant to proceed with construction, subject to the out- come of the temporary injunction application. Additionally, liberty was granted to the defendant to alienate the property, with such transactions remaining subject to the final decision on the temporary injunction.

2. Brief facts of the case stated by the petitioner in the writ petition are that the petitioner/plaintiff filed a civil suit seeking a permanent injunction and cancellation of the power of attorney dated 05.11.1997 executed in favor of defendant no.1, as well as the sale deeds dated 10.11.1997 and 15.11.2010 executed in favor of defendant no.2 and 3, respectively. The agricultural land in question, situated at Bhilwara, was allotted to the plaintiff, who remained its owner and possessor. Since the plaintiff was often out of town, defendant no.1 managed the property, but after retirement, the plaintiff resumed its care and resided jointly at Nagar, Bhilwara. Following a brain stroke suffered by the plaintiff, his daughters, Sapna and Neha, began overseeing the property. When they attempted to raise fencing, they were threatened by unknown persons, leading them to inquire at the Sub-Registrar’s office, where they discovered that defendant no.1 had allegedly executed a forged power of attorney on 05.11.1997, based on which a sale deed dated 10.11.1997 was executed, eventually leading to the sale of the property to defendant no.3 through a sale deed dated 15.11.2010. The petitioner also filed an application under Order XXXIX Rule 1 and 2 CPC seeking a temporary injunction to maintain the status quo over the property. On 20.08.2020, the trial court granted time to defendants no.1 and 2 to file their reply to the injunction application while granting an ad-interim injunction and observed that if defendant No.3 raises construction, same shall be subject to final order. Aggrieved, the petitioner filed a civil miscellaneous appeal under Order XLIII Rule 1(r) CPC, contending that after 23 years of no construction on the property, the defendants were now permitted to construct without ascertaining the property’s existing status. The petitioner also submitted a photocopy to demonstrate the absence of any boundary wall or fencing at the site. However, on 02.09.2020, the appellate court dismissed the appeal, holding that only a final order under Order 39 Rule 1 and 2 CPC was appealable under Order XLIII Rule 1(r) CPC and as such, the present writ petition has been filed challenging the or- ders dated 02.09.2020 (Annex.10) passed by the learned District Judge, Bhilwara, and 20.08.2020 (Annex.7) passed by the learned trial court.

3. Learned counsel for the petitioner submits that the impugned order dated 02.09.2020 (Annex.10) has been passed by the learned Appellate Court in gross violation of Order XLIII Rule 1 of CPC. He submits that an appeal lies to the impugned order dated 20.08.2020 (Annex.7) by which the ad-interim order was granted while directing that the respondent Nos.1 & 3 can raise construction on the suit property. He submits that the petitioner/plaintiff being aggrieved of the same has preferred an appeal before the learned Appellate Court and the learned Appellate Court vide order dated 02.09.2020 (Annex.10) rejected the appeal while holding that the appeal is not maintainable in light of the provisions and accordingly the appeal was dismissed.

4. Learned counsel for the respondents is not in a position to refute that under Order XLIII Rule 1 of CPC, an appeal is maintainable against the impugned or