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1997 Supreme(Ori) 145
IN THE HIGH COURT OF ORISSA
P.K. Mohanti, J.
PADMNAV DAS AND OTHERS - APPELLANT
Versus
DHABALESWAR SATPATHY - RESPONDENT
Civil Revision No. 22 of 1974
Decided On : 17-10-1997
C.V. Murty, for the Appellant; R.N. Das and P.K. Das, for the Respondent
An ad interim injunction passed under Order 39, Rule 2 CPC is appealable under Order 43, Rule 1(r) CPC.
Headnote:
INJUNCTION - ORDER 39 RULE 2 CPC - APPEALABILITY - AD INTERIM INJUNCTION - APPEALABLE UNDER ORDER 43 RULE 1(R) CPC.
Fact of the Case:
The petitioner, a Mukhtar, filed a suit for a permanent injunction restraining the defendants from carrying on legal profession unauthorizedly. Along with the plaint, he filed a petition under Order 39 Rule 2, CPC for the issue of a temporary injunction against the defendants. The learned Munsif posted the matter for hearing and directed the issue of notice to the defendants to show cause why a temporary injunction should not be issued against them. On the next date, the defendants applied for time to file a show-cause, which was allowed by the learned Munsif. On the subsequent date, the defendants again applied for time on the ground that the local lawyers were unwilling to appear on their behalf and they wanted to engage a lawyer from outside. The learned Munsif allowed time till a specific date and made an order of interim injunction restraining the defendants from the various acts alleged against them in the petition of the petitioner.
Finding of the Court:
The court held that the impugned order was an ad interim injunction passed under Order 39, Rule 2 CPC and was, therefore, appealable under Order 43, Rule 1(r) CPC. The court further held that the order was not passed u/s 151, CPC and hence it could not be challenged by a civil revision.
Issues: Whether the impugned order was an ad interim injunction passed under Order 39, Rule 2 CPC and was, therefore, appealable under Order 43, Rule 1(r) CPC.
Ratio Decidendi: The court relied on several precedents to hold that an ad interim injunction passed under Order 39, Rule 2 CPC is appealable under Order 43, Rule 1(r) CPC. The court also held that the impugned order was not passed u/s 151, CPC and hence it could not be challenged by a civil revision.
Final Decision: The court dismissed the civil revision petition, but without any order as to costs. The parties were directed to appear before the Munsif on a specific date when the defendants-petitioners may file their objection to the ad interim injunction. The learned Munsif was directed to finally dispose of the application for temporary injunction within a fortnight thereafter and to proceed with due dispatch and attempt to dispose of the suit within three months from the date of the order.
JUDGMENT :
P.K. Mohanti, J. - This civil revision is directed against an interim order of injunction restraining the Petitioners from carrying on legal profession unauthorisedly.
2. The Petitioner-opposite party is a Mukhtar practising at Bonaigarh. He filed Title Suit No. B of 1973 for a permanent, injunction restraining the Defendants - Petitioners from carying on legal profession unauthorisedly. The suit was filed on 19-12-1973. Along with the plaint the Petitioner, filed a petition under Order 39 Rule 2, CPC for issue of a temporary injunction against the Defendants. The learned Munsif posted the matter to the next day for hearing and directed issue of notice to the Defendants to show cause why temporary injunction should not be issued against them. On the next gay, i.e. 20-12-1973 the Defendants applied for time for one month to file show-cause. The learned Munsif allowed time till 22-12-1973. On,that date the Defendants again applied for one, months time on the ground that the local lawyers were unwilling to appear on their behalf and they wanted to engage a lawyer from outside. The learned Munsif while allowing time till 10-1-1974 made an order of interim injunction in the following terms:
Since, prima facie, the acts of the Defendant are likely to cause injury to the Petitioner and since the Defendants have not shown any interim cause, which they can as well do, even though no lawyer supports them, issue an interimorder of injunction restiaining the Defendants from the various acts alleged against them in the petition of the Petitioner copies of which have since been served on Defendants.
Put up on the date fixed for the Defendants to show cause why this order should not be made absolute by engaging lawyer of their choice.
Aggrieved by this order, the Defendants have come up in revision.
3. The learned Counsel appearing for the Petitioner -oposite party raised a preliminary objection that the civil revision is not maintainable as the impugned order is, appealable under Order 43 Rule 1(r), Code of Civil Procedure. In support of his contention he relied on a decision reported in L.D. Meston School Society Vs. Kashi Nath Misra, wherein it was held that an ex parte order of injunction is to be construed as an order passed under Rule I, or Rule 2 of Order 39 and, as such, an appeal lies under Order 43, Rule 1(r), Code of Civil Procedure. As against this contention it was urged on behalf of the Petitioners that it is only a final order under Order 39, Rules 1 or 2 which is appealable under Order 43, Rule 1(r) CPC but the impugned order being an ad interim order it can be challenged by a civil revision. In support of this contention the Petitioners relied upon a later decision of the same High Court reported in Raja Deo Singh v. Kr. Shambho Krishna Narain 63 (1960) All. LJ 124 wherein it was observed that the appeal provided against an order under Order 39 is against the final orders and not against interim orders 4. There is a plethora of authorities in support of the view expressed in L.D. Meston School Society Vs. Kashi Nath Misra, and the consensus of opinion is in favour of appeal ability of an ad interim order of injunction : In the case of Zila Parishad, Budaun and Others Vs. Brahma Rishi Sharma a Full Bench of the Allahabad High Court overruled the decision in Raja Deo Singh v. Kr. Shambho Krishna Narain 63 (1960) All. LJ 124 and affirmed the view expressed in L.D. Meston School Society v. Kashi Nath Misra 63 (1960) All. LJ 124. Their Lordships relied on the decisions reported in Shyam Behari Singh v. B. Biseswar Dayal Singh and Ors. Balabh Das Kothari and Ors. v. M. Muhammad Ishaq and Ors. AIR 1933 Lab. 282 Devasahayam Nadar Anthonimuthu Nadar AIR 1953 Ttrv. Coch. 240 v. Arumukhan Nadar Oalayan Nadare and Chathakni Ramulu v. Chathakni Ganga Ram AIR 1953 Hyd. 138, wherein an ad interim order of injunction was held to be appealable under Order 43, Rule 1(r), Code of Civil Procedure. It was contended before the Full Bench tha
