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Allahbad High Court
S.N.DWIVEDI,S.N.SINGH,A.K.KIRTY
Zila Parishad, Budaun - Appellant
Versus
Brahma Rishi Sharma - Respondent
Decided On : 11/17/1969
APPEALABILITY OF EX PARTE AD INTERIM INJUNCTION - ORDER 39, RULES 1 AND 2, ORDER 43, RULE 1(R), C.P.C. - An ex parte ad interim injunction order passed under Order 39, Rules 1 and 2, C.P.C. is appealable under Order 43, Rule 1(r), C.P.C.
Fact of the Case:
In three separate cases, the issue arose whether an ex parte ad interim injunction order passed under Order 39, Rules 1 and 2, C.P.C. was appealable. In one case, the plaintiff sought an injunction to restrain the defendants from enforcing an order of suspension and interfering with his duties as an engineer. In another case, the plaintiffs sought an injunction to restrain the defendants from using a cinema house and its machinery and furniture. In the third case, the plaintiff sought an injunction to restrain the defendants from wasting, damaging, or alienating property in dispute.
Finding of the Court:
The court held that an ex parte ad interim injunction order passed under Order 39, Rules 1 and 2, C.P.C. is appealable under Order 43, Rule 1(r), C.P.C. The court reasoned that the language of Rule 1(r) is unhedged and broad, and that courts should lean in favor of an interpretation which expands rather than shrinks a remedial right. The court also noted that an ad interim injunction may be granted under Order 39 or Section 151 in some cases, and that no appeal lies against an order under Section 151, be it ex parte or otherwise. Therefore, the court concluded that an ex parte ad interim injunction order made under Order 39 will fall either under Rule 1 or Rule 2, and that Rule 1(r) of Order 43 does not say that an appeal shall lie from a final order under Rule 1 or Rule 2 of Order 39.
Issues: 1. Whether an ex parte ad interim injunction order passed under Order 39, Rules 1 and 2, C.P.C. is appealable under Order 43, Rule 1(r), C.P.C.? 2. Whether an appellant can rely on fresh evidence in appeal which was not before the trial Court?
Ratio Decidendi: 1. The language of Rule 1(r) of Order 43, C.P.C. is unhedged and broad, and courts should lean in favor of an interpretation which expands rather than shrinks a remedial right. 2. An ad interim injunction may be granted under Order 39 or Section 151 in some cases, and that no appeal lies against an order under Section 151, be it ex parte or otherwise. 3. Therefore, an ex parte ad interim injunction order made under Order 39 will fall either under Rule 1 or Rule 2, and that Rule 1(r) of Order 43 does not say that an appeal shall lie from a final order under Rule 1 or Rule 2 of Order 39.
Final Decision: The court answered the first question in the affirmative and the second question in the negative. The court held that an ex parte ad interim injunction order passed under Order 39, Rules 1 and 2, C.P.C. is appealable under Order 43, Rule 1(r), C.P.C., but that an appellant cannot rely on fresh evidence in appeal which was not before the trial Court until it is admitted by the appellate Court under Order 41, Rule 27, C.P.C.
S. N. SINGH, J. :- The above three cases have come before this Bench in view of an apparent conflict between the decisions of two Division Benches of this Court (L. D. Meston School Society v. Kashi Nath Misra, AIR 1951 All 558 and Raja Deo Singh v. Kr. Shambho Krishna Narain, 1960 All LJ 124.) Before adverting to the question of law involved in these three cases it is necessary to give in brief the facts of each case.
2. First Appeal from Order No. 152 of 1967 arises out of a suit brought by the plaintiff who claims to be an Abhiyanta in the service of Zila Parishad, Budaun for a perpetual injunction requiring the defendants not to enforce an order of suspension dated the 29th of April 1967 said to have been issued under the signature of Adhyaksh, Zila Parishad, Budaun. It was also prayed that the defendants be restrained from interfering in the discharge of his duty as Abhiyanta of the Parishad. In this suit the plaintiff moved an application supported by an affidavit for the issue of an ad interim injunction under Order 39, C.P.C. The Civil Judge considered this application and passed the following order:
"Issue notice to the defendants, their employees, agents, workmen etc. to show cause why they should not be restrained from enforcing the order of suspension dated 29-4-1967 and from interfering in the discharge of the plaintiff's duty as Engineer and from calling upon the plaintiff to hand over charge of his post of Engineer.
In the meantime the defendants, their employees, agents, workmen etc. are restrained pending the disposal of the suit from enforcing the order of suspension dated 29-4-1967 from interfering in the discharge of the plaintiff's duties as Abhiyanta of the Zila Parishad and from calling upon the plaintiff to hand over charge of the post of Abhiyanta. The plaintiff will continue to receive his pay and allowances from the Zila Parishad as admissible under the rules".
3. Against the above ex parte order passed by the Civil Judge, Budaun, First Appeal from Order No. 152 of 1967 was filed in this Court. When this appeal was listed for hearing, one of us (S. N. Singh, J.) finding apparent conflict between the two Division Bench cases mentioned above referred the following questions to a larger Bench :-
(1) Whether the ex parte order issuing injunction against the defendants is appealable in the circumstances of this case?
(2) If the order is appealable can the appellant rely on fresh evidence which was not before the trial Court?
4. First Appeal from Order No. 170 of 1966 arises out of Suit No. 14 of 1966 which was instituted by the plaintiffs against the defendants for possession over the cinema house Sunder Talkies along with its machinery and furniture and for a decree for Rs. 10,600/- as arrears of lease money and also for a decree for mesne profits at the rate of Rs. 1,000/-per month from 1st April 1966 in the Court of Civil Judge, Basti. In this suit the plaintiffs filed an application for injunction supported by an affidavit and prayed that an ad interim injunction be issued restraining the defendants from using the cinema house, machinery and furniture and holding the cinema shows. They also prayed for the appointment of a commissioner to make an inventory of all the articles and for giving the same in Supurdagi of some reliable person.
5. The Civil Judge, Basti, passed the following order :
"Let ad interim injunction, as prayed, be issued restraining the defendants first set from using the cinema house, its machinery and furniture and from performing the cinema show till further orders as mentioned in the application 9-C".
Against this ex parte order First Appeal from Order No. 170 of 1966 was filed in this Court and it came for hearing before one of us (Kirty, J.). In this case a preliminary objection was raised as to the maintainability of the appeal. Finding apparent conflict between the two Division Bench cases referred to above this case was also directed to be listed along with First Appeal from
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