An ex parte interim injunction granted without notice is appealable, and the defendant is not precluded from appealing the order even though he has appeared in the suit. The defendant may also concurrently pursue an application under Order XXXIX, Rule 4 to vacate or vary the interim injunction.

( 1 ) IN a suit for injunction on the basis of an application for temporary Injunction by an order dated 12. 4. 1990 passed in Original Suit No, 192 of 1990 by the learned Munslf, Kasganj district etah, ad interim injunction was granted against the defendant while directing issue of notice. An appeal was preferred against the said order being Misc. Appeal No. 41 of 1990. Thereafter by order dated 23. 5. 1990 passed by the learned Munsif the order dated 12. 4. 1990 was extended. By an order dated 22. 10. 1990 passed by IIIrd Additional District Judge, Etah, the appeal was allowed and the order passed by the learned Munsif granting ad interim order was set aside while directing the record to be sent back for disposing of the case in accordance with law.

( 2 ) SRI Sharad Sharma, learned counsel, holding brief of Sri H. N. Sharma, learned counsel for the petitioner contends that since the appellate court had decided the application for injunction, at the ad interim stage, it was no more open to agitate the application any more before the learned trial court. At the same time the appellate court while allowing the appeal had relied on the affidavit filed on behalf of defendant appellant without giving opportunity to the plaintiff-petitioner to rebut the said affidavit, and, therefore, the finding is perverse. He further contends that since before the appeal was decided, the defendant had entered into appearance and had been contesting the application for injunction. Therefore, the mischief of Order XXXIX, rule 3 of the Code of Civil Procedure can no more be attracted and the remedy of the defendant was that of Order XXXIX. Rule 4 of the Code. The appellate court had acted in excess of its jurisdiction in entertaining the appeal in such circumstances, when it was incumbent on the defendant to resort to application under Order XXXIX. Rule 4 of the Code since he has been contesting the injunction matter after putting his appearance. For all these reasons,, this order should be set aside.

( 3 ) BEFORE opening his case. Sri Sharma prayed for leave to convert this petition into one under article 227 of the Constitution in view of the decision in the case of Ganga Saran v. Civil Judge, hapur. AIR 1991 All 114, by reason whereof the writ petition is not maintainable. As prayed, leave is granted. Sri Sharma can amend the cause title in course of today.

( 4 ) I have heard Sri Sharad Sharma, learned counsel at length. A perusal of the order dated 12. 4. 1990 shows that notices were directed to be issued to the defendant fixing 26. 4. 1990 for objection and disposal of the application for injunction, while restraining the defendants from interfering with the possession of the plaintiff in respect of the disputed property till the date fixed. At the same time, he had also allowed commission to be issued and this order was extended by order dated 23. 5. 19. 90, where it was recorded that the "case was called. Parties counsels are present. The Court is vacant. Fixed 9. 7. 1990 for disposal of 6-C/2. The order dated 12. 4. 1990 is extended, meanwhile". In the order dated 22. 10. 1990 passed in appeal, it does not appear that the appeal was filed out of time. This question does not appear to have been raised by the plaintiff nor dealt with by the learned District Judge. This pre-supposes that the appeal must have been filed within time. Therefore, it might have been filed before the order dated 23. 5. 1990. But that question was neither raised nor pointed out even in the writ petition. Therefore, in absence of any effective material to contradict the fact that the appeal was filed after the order dated 23. 5. 1990 was passed, it is not possible for this Court to arrive at such conclusion. Since such point has not been pleaded in the writ petition itself, therefore, it is presumed that the appeal was filed before the order dated 23. 5. 1990 was passed.

( 5 ) ADMITTEDLY, order dated 12. 4. 1990 was passed before issuance of notice and