An order refusing to accept the prayer for injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908 in a suit under Section 6 of the Specific Relief Act, 1963 is not appealable.

JUDGMENT :

A. Pasayat, J. - An interesting point relating to scope and ambit of Sub-section (3) of Section 6 of the Specific Relief Act, 1963 (in short, 'the Act') is the subject-matter of adjudication in this revision application.

2. A brief reference to the factual aspects as presented by the petitioner, would suffice.

Petitioner as plaintiff filed a suit u/s 6 of the Act in the Court of Subordinate Judge, Balasore (presently designated as Civil Judge, Senior Division) for a decree for recovery of possession of the suit property, mandatory injunction and other consequential reliefs. Plaintiff's case was that he was inducted as a tenant in respect of the suit property in the year 1977. After his induction he had developed the land, got electric power supply to the premises and started a motor repairing garage. The defendants with mala fide intention stopped granting receipts for which the rent due was sent by money orders. On 3-5-1993, the defendants with the help of hired goondas demolished the structures and boundary wall constructed by the plaintiff, drove him out of the suit premises and threw away his belongings. In the suit, an application was filed by the plaintiff under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908 (in short, 'the Code') for injuncting the defendants (present respondents) from alienating the suit property and from raising any permanent structure on the suit plot. Defendants filed their objection to the prayer. It was admitted that the plaintiff was a tenant under them, but a plea was taken that the plaintiff had volunatrily vacated the suit premises on 1-3-1993 after demolishing the structures and removing the belongings.

3. The learned trial Judge rejected the prayer for injunction. An appeal was preferred before the learned District Judge which was numbered as Misc. Appeal No. 98 of 1993. When the appeal was taken up for consideration the defendants-respondents raised a preliminary objection about maintainability of the appeal with reference to Sub-section (3) of Section 6 of the Act. The plaintiff-apppellant took a stand that the appeal was maintainable, but took the stand that as a matter of abundant caution he had filed a petition stating inter alia that in case the appeal was held to be not maintainable, same may be converted to a revision. The learned District Judge held that the appeal was not maintainable and directed that the maintainability of the petition for revision shall be considered on its own merits.

4. According to Mr. A. Mukherji, learned counsel for petitioner, appeal is a creature of statute and the undisputed position being that an order disposing of an application under Order 39, Rules 1 and 2 of the Code can be dealt with in terms of Order 43, Rule 1 (r) thereof, the appeal should have been held to be maintainable. The expression 'order' as appearing in Sub-section (3) of Section 6 of the Act cannot be given a restricted meaning to frustrate the intention of Legislature to provide remedy and too technical view should not have been taken. With reference to certain observations of the apex Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others it was submitted that where substantial justice and technicalities are pitted against each other, the former has to prevail. It is, further urged that the expression 'order' would only engulf those decisions which are in relation to the suit itself and not outside the scope thereof. Mr. H.M. Dhal, learned counsel for respondents, on the ether hand, submitted that the language of the act being clear and the legislative intention being in keeping out any order passed u/s 6 out of the umbrella of appeal, the learned District Judge was justified in his conclusion.

5. For resolution of the controversy it is necessary to take a bird's eye view of the provision itself which reads as follows :

"6. Suit by person dispossessed of immovable property-- (1) If any person is dispossessed without his consent of immo