By the Court.—Heard Sri Nikhil Agrawal, Advocate, assisted by Sri Rahul Agrawal for the appellant and Sri Shashi Nandan, Senior Advocate assisted by Sri Vishnu Gupta, Advocate appearing for the respondent.

2. By consent of the parties, we proceed to hear the appeal finally and dispose of it finally.

3. This first appeal from order under Order XLIII Rule 1(r) of the Code of Civil Procedure has been filed challenging the order dated 29.4.2010 passed by the Civil Judge (Senior Division), Allahabad granting temporary injunction. The appellant is defendant in the suit. Suit No. 637 of 2010 was filed by the plaintiff/respondent on 26.4.2010 on which date the trial Court issued notice on application 6c fixing 29.4.2010. On 29.4.2010 the Court noticed the endorsement on the notice that defendant after seeing the notice informed that he will appear on the date fixed but refused to sign the notice. No one appeared on behalf of the defendant on 29.4.2010. The Court considered the claim of the plaintiff that the plaintiff has purchased the property and defendant is changing the structure of the premises. The copy of the sale deed and photo graph of spot was filed by the plaintiff. The Court directed the case to be put up on date fixed, i.e., 1.7.2010, and in the meantime, defendant was directed to maintain status quo over the property in dispute. Learned counsel for the appellant challenging the order contended that the notice was never tendered to the defendant and the trial Court without adverting to the necessary ingredients for grant of temporary injunction and without recording any finding with regard to ingredients of prima facie case, balance of convenience and irreparable loss granted temporary injunction. Learned counsel for the appellant has placed reliance on a Judgment of the Apex Court in Kishorsinh Ratansinh Jadeja v. Maruti Corporation and others, 2009 (11) SCC 229.

4. Sri Shashi Nandan, Senior Advocate appearing for the respondent contended that this appeal is not maintainable under Order XLIII Rule 1(r) since no final order has been passed under Order XXXIX Rule 1 C.P.C. and at best the the impugned order is referrable to Section 151 C.P.C. and till final decision is taken on application 6c the order is not appeallable. He further contends that under the provisions of Uttar Pradesh Urban Building (Regulation of Letting and Rent Eviction) Act, 1972, the tenant is not entitled to carry on even repairs without giving notice to the landlord. He submits that major structural changes are being undertaken by the defendant and, hence, the injunction has rightly been granted by the trial Court.

5. We have considered the submission of the learned counsel for the parties, and perused the record.

6. First contention of the learned counsel for the respondent that the appeal is not maintainable, is to be considered first. Submission of the learned counsel for the respondent is that against an order under Order XXXIX Rule 1, an appeal under Order XLIII Rule 1(r) shall lie only when application for temporary injunction is finally decided. Provision of Order XXXIX Rule 1 and provisions of Order XLIII Rule 1 (r) are as follows :

“Order XXXIX Rule 1. Where in any suit it is proved by affidavit or otherwise-

a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

b) that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors.

the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.”

“Order XLIII Rule 1. An appeal shall lie from the following orders under the provisions of section 104, namely :

xxx xxx xxx

(r) an order under rule 1,