IMPORTANT POINT
An appeal against an order declining a temporary injunction is maintainable if the order is made after hearing both parties, as per the CPC.

JUDGMENT :

Mr. Gurbir Singh, J. :- By this common order, the above said four revision petitions are being disposed of as they arise out of the same proceedings.

2. Challenge in these revision petitions is to the order dated 08.08.2019 passed by learned Additional District Judge, Gurgaon where the appeal filed by the petitioners against the order dated 01.10.2018 passed by learned Civil Judge (Junior Division), Pataudi, has been disposed of as not maintainable.

3. Brief facts necessary for disposal of these revision petitions are that the petitioners-plaintiffs filed a suit for declaration with consequential relief of permanent and mandatory injunction against the respondents-defendants. Along with the suit, an application under Order 39 Rule 1 & 2 CPC read with Section 151 CPC for grant of temporary injunction restraining the issuance of warrant of possession of the suit land and for grant of stay of execution of judgment dated 30.05.2018 till final decision of civil suit and further restraining defendant No.1 not to interfere in the peaceful possession of the plaintiffs and also restrain defendant Nos.53 to 55 to obtain any procedure for delivery of possession to defendant No.1 for the suit property.

4. During the pendency of suit, learned trial Court, after hearing learned counsel for the plaintiffs and defendant No.1 and authorized representatives of defendants No.62 to 64 passed a detailed order whereby request for grant of ad interim injunction was declined vide order dated 01.10.2018 and the case was adjourned for filing written statement. The plaintiffs filed appeal under Order 43 Rule 1(r) CPC. The learned Additional District Judge, while relying upon Iqbal Singh Versus Chanan Singh, 1966 AIR (P&H) 165, disposed of the appeal being not maintainable and directed the parties to appear before the learned trial Court.

5. Both the parties agree that the order declining grant of ad-interim injunction has been passed by the trial Court after hearing both the parties, so, appeal was maintainable. There is no dispute that the remedy under Article 227 of the Constitution of India is available to the petitioners only when no appeal lies against the order.

5.1 Since the order was passed by the learned trial Court after hearing the parties, so in view of provisions of Section 104, Order 43 Rule 1(r) CPC, appeal is maintainable. Reference in this regard can be made to the judgment of the Hon’ble Supreme Court in A. Venkatasubbiah Naidu Versus Chellappan and others, AIR 2000 Supreme Court 3032. Paras 11 and 20 of said judgment read as under:-

“11. It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43, Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same Court which passed the ex parte order for any relief.”

“20. Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision pe