An order refusing to pass an ex parte order of ad interim injunction without notice as provided under O. 39, Rule 3, CPC, is not appealable.

S. C. MOHAPATRA, J.

( 1 ) PLAINTIFF is petitioner in this civil revision.

( 2 ) IN the suit for title, possession and permanent injunction with other consequential reliefs in respect of a house in Cuttack town, plaintiff filed an application for temporary injunction against defendant No. 1 along with the application for temporary injunction, plaintiff filed an application invoking power of the trial court to record reasons as required under Order 39, Rule 3, C. P. C. , for passing an order of ex parte ad interim injunction. Trial court having refused to exercise such power, plaintiff filed an appeal against the order treating it to be refusal to pass an order of injunction. Appellate court dismissed the appeal on the finding that the appeal is not maintainable. This is grievance of the plaintiff in the revision.

( 3 ) SHORT question for consideration is whether an appeal lies against an order of the court declining to pass an ex parte ad interim order of injunction.

( 4 ) IT is now settled by this Court in 1975 (1) CWR 18 (Padmanav Das v. Dhabaleswar Satpathy) that an appeal lies against an order of ex parte ad interim injunction. In 1989 (II) OLR 455 (Naliniprava Patnaik v. Smt. Jyotirmayee Das) it has been held that no appeal lies against an order of the Court refusing to pass an ex parte order of ad interim injunction without notice as provided under O. 39, Rule 3, CPC.

( 5 ) NORMALLY, earlier decision of this Court in 1989 (II) OLR 455 (supra) is binding on me. Mr. B. H. Mohanty, learned counsel for the petitioner however, submits that the said decision requires reconsideration. Mr. M. M. Sahoo, learned counsel for respondent No. 1 submitted that the principle decided in the aforesaid decision is correct and requires no reconsideration.

( 6 ) MR. B. H. Mohanty, learned counsel for the petitioner submitted that an order declining to pass an ex parte order of injunction before notice is an order refusing to pass an order under Rule 1 or 2 of Order 39 and accordingly is an order thereunder since Order 39, Rule 3, CPC, does not envisage any order to be passed. Accordingly, Order 43, Rule 1 (r) CPC vests right on a party to prefer appeal. Mr, Mohanty relied upon the decisions reported in AIR 1982 Sikkim 20, (Ashok Tahering Lama v. Tahering Wangdi) and AIR 1984 Gau 86 (Akmal Ali v. State of Assam) in support of his contention.

( 7 ) WHEN an application for granting temporary injunction under Order 39 Rule 1 or Rule 2 C. P. C. is filed in a Court by a party, natural justice demands that a party against whom the order is sought for is to be given opportunity of being heard since an adverse order is prayed is to be passed against him. This is reflected under Order 39, Rule 3, CPC. Situation, however, may demand an immediate order which if not passed would defeat the very purpose of the application. Since Courts were exercising the power under Order 39, Rule 1 or 2, CPC liberally to pass an ex parte order of injunction, whereafter, parties getting the order were trying to delay the final hearing of such an application. Parliament took note of the same and has inserted a proviso to Order 39, Rule 3, CPC, prohibiting a Court from passing an order ex parte without notice to the adverse party and required that in case of emergency where it is proposed to grant an injunction without giving notice of the application to the opposite party, Court is to record the reason for its opinion that the object of granting injunction would be defeated by delay.

( 8 ) IT has been held in AIR 1982 Orissa 245 (State of Orissa v. Orissa Oil Industries Ltd.) that in case, reasons are not recorded as required under Order 39, Rule 3 proviso, the order is to be taken as illegal. This decision has been relied on in a latter decision reported in (1987) CLT (Supp) 198 (Raghunath Jew Takhur v. Sk. Alli Hussain ).

( 9 ) IN view of the aforesaid two decisions, it is clear that a duty is cast on the Court to first consider whether it would consider the ques