An order declining to grant an ex parte temporary injunction under Rule 3 of Order 39 of the Code of Civil Procedure is not appealable under Order 43, Rule 1(r).

R.S.Narula, J.

1. The only question arising in this revision petition whether an appeal under Clause (r) of Rule 1 of Order 43 of the Code of Civil Procedure lies or not against an order declining to grant an ex-parte temporary injunction on an application under Order 39, rule 1 or rule 2 of the Code. It is needless to go into the detailed facts of the case for deciding the above question. In December, 1964, Chanan Singh etc., respondents, who were the tenants, filed a suit for a permanent injunction restraining Iqbal Singh and others, the landlords, from interfering with the possession of the tenants in the land in dispute either under an order of ejectment, which had been obtained by the landlords against the tenants from the Court of the Revenue Assistant concerned or otherwise, as they claimed to be the lessees in occupation of the land. Along with the petition of plaint, they filed an application for a temporory injunction pendente lite. The application does not show under what provision of law it was made, but I have read the same and it is obvious that the temporary injunction was prayed for under rule 2 of Order 39 of the Code. This application, dated 23rd December, 1964, came up before the trial Court on 24th December, 1964, and after hearing the counsel for the plaintiffs respondents, the Court of Shri V. K. Kaushal, Subordinate Judge, First Class, Kaithal, pased the following order on it :-

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"No ground for ex parte interim stay. Notice be given for 2-1-1965." Though the word used in the above order is stay, I will have to take it that what the learned Subordinate Judge really declined was an ex parte temporary injunction, as there was no question of his staying any proceedings before the Revenue Assistant.

2. The tenants plaintiffs preferred an appeal against the abovesaid order of the trial Court in so far as it declined to grant them ex parte relief. That appeal was accepted by the Court of Shri B. S. Yadev, Senior Subordinate Judge, Karnal, on 7th May, 1965. In this revision petition filed by the landlords, it has been urged by Shri Pitam Singh Jain, the learned counsel appearing for them, that the appeal before the Senior Subordinate Judge, Karnal, was not competent and the appellate order should be set aside and quashed by me on that solitary ground.

3. Order 43, Rule 1, Clause (r) reads as follows --

"Order 43 1. An appeal shall lie from the following orders under the provisions of section 104, namely :-

- * * * * * * * * * * * *(r) an order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX; * * * * * * * * * * * *

It is, admitted on both sides that if the order of the Subordinate Judge, First Class, Kaithal, dated 24th December, 1964, refusing to grant ex parte injunction fell within the scope of rule 2 of Order 39 of the Code, the appeal before the learned Senior Subordinate Judge was competent. There is equally no dispute about the fact that if the order of the trial Court, dated 24th December, 1964, does not fall within the scope of rule 2 of Order 39 of the Code, the appeal was wholly incompetent and the order of the Senior Subordinate Judge under revision has to be set aside as being without jurisdiction.

4. The scheme of rules 1, 2 and 3 of Order 39 of the Code is this. In the circumstances enumerated in rule 1 of Order 39 of the Code, the Court under that provision of law has three courses open to it; it may dismiss an application, it may grant an application; or it may merely give notice of the same to the defendants. Similar is the case under rule 2 of Order 39 of the Code. But on the powers vested in a Civil Court under rules 1 and 2 of the Code, is superimposed a restriction by rule 3. The said restriction is applicable to all cases except those for which an exception is incorporated in that rule itself. Rule 3 of Order 39 reads as follows --

"3. The Court shall in all cases except where it appears that the object of granting the injunction would be defeated by the delay, before grant