An appeal lies against an interim injunction order under Order 39, Rules 1 and 2 of the Civil Procedure Code under Order 43, Rule 1(r) of the Civil Procedure Code.

ORDER:- This as an application in revision under Section 115 of the Civil Procedure Code and has been directed against an order D/-12-1-1971 of the District Judge, Simla whereby he has modified a certain order of injunction issued at interim stage by the Senior Sub-Judge of Simla. The facts leading to the petition are as

follows.

2. The plaintiff Shrimatl Raj Kumari Suri appeared in Court with the allegations that the defendant Shri Prem Lal Dhiman is constructing a house over a plot of land sold to him by her, but he is also utilising the main passage beyond the point 'AB' leading to her own building and the court premises, shown in her site plan and that the defendant should be prohibited from using this main passage. It was further contended, that the defendant is constructing a wall towards the main passage beyond the point 'AB' and he has opened doors, windows and ventilators in this wall to which he is not entitled. Accordingly the suit was filed for prohibitory injunction of a permanent nature restraining the defendant from utilising the main passage and from opening the doors, windows and ventilators.

3. Upon the application of the plaintiff on 3-11-1970, the learned Senior Sub-Judge made the following order:-

"Issue notice to the respondents for 28-11-1970. Ad-interim injunctions, as prayed for, till further orders. Senior Sub-Judge 3-11-70"

The defendant filed his objections under Order 39, Rule 4 of the Civil Procedure Code which have remained undisposed of. It was contended on behalf of the defendant that several adjournments were granted by the learned Senior Sub-Judge, with the result that the injunction ad-interim was continued for unnecessary period of time. Accordingly the defendant came in appeal before the learned District Judge who heard the parties and by his order, Dated 12-1-1971 modified the injunction already granted by the learned Senior Sub-Judge. He maintained the injunction for not using the main passage beyond the point marked 'AB' leading to the main building. He further maintained the injunction by saying that the windows, doors and ventilators which shall be opened by the defendant would not touch the main passage, nor would be utilised by the defendant for any path upto the main passage beyond the point marked 'AB'. However, he modified the injunction to this extent that subject to these restrictions, the windows, doors and ventilators can be opened by the defendant in his wall towards this side. The plaintiff has the grievance to this modification and she has now come up in revision before this Court and wants reconsideration of the whole issue.

4. It was contended by the learned counsel that the appeal under Order 43, Rule 1 (r) of the Civil Procedure Code was not entertainable before the District Judge. The basis for the argument has been that the learned Senior Sub-Judge had passed only an interim order which could be modified or even set aside subsequently. It is stated that an appeal against a final order could be filed under Order 43, Rule 1 (r) of the Civil Procedure Code. I can at once say that this argument of the learned counsel does not seem to carry any weight. The language and the

object of the Rule 1 (r) of Order 43 and the scheme of Rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte order of injunction. As soon as in interim injunction is issued and the party affected thereby is apprised of it, he has two remedies.

(1) he can either get the ex parte injunction order discharged, varied or set aside under Rule 4 of Order 39, and if unsuccessful, avail the right of appeal as provided for under Order 43, Rule 1 (r) or,

(2) straightway file an appeal under Order 43, Rule 1 (r) against the injunction order passed under Rules 1 and 2 of Order 39 of the Civil Procedure Code.

It is not unusual to provide for alternative remedies. To support this proposition, reliance can be placed on AIR 1970 All 370 (FB), Zila Parishad Budaun v. Brahama Rishi Sharma. The learne