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ALLAHABAD HIGH COURT
AGARWALA, J.
MUSTAQ AHMAD AND DESAI, JJ. ( Full Bench ) - Appellant
Versus
MUSTAQ AHMAD AND DESAI, JJ. ( Full Bench ) - Respondent
F. A. F. O. No. 246 of 1947
Decided On : 28-09-1950
INJUNCTION - Appealability of order refusing to issue ad interim injunction - Order refusing to issue ad interim injunction as allowed by R. 3 of O. 39, Civil P. C., is not appealable.
Fact of the Case:
Plaintiff, a firm dealing in tents and brushes, had a dispute with its workers regarding bonus payment. The Governor referred the dispute to an officer of the Government for adjudication. The officer made an award in favor of the workers. The plaintiff filed a suit to cancel the award and also applied for a temporary injunction restraining the defendants from recovering the amount under the award. The Court below refused to issue an ad interim injunction, holding that intricate questions of law were involved and that both parties should be heard before deciding the application.
Finding of the Court:
The Court held that an order refusing to issue an ad interim injunction as allowed by R. 3 of O. 39, Civil P. C., is not appealable. The Court further held that the order of the Court below was not appealable as it was not a final order on the application for temporary injunction but only a preliminary order refusing to issue an ad interim injunction.
Issues: 1. Whether an order refusing to issue an ad interim injunction as allowed by R. 3 of O. 39, Civil P. C., is appealable? 2. Whether the order of the Court below was appealable?
Ratio Decidendi: 1. An order refusing to issue an ad interim injunction as allowed by R. 3 of O. 39, Civil P. C., is not appealable. This is because R. 3 of O. 39, Civil P. C., provides that the Court shall, in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. This means that the normal procedure is to issue a notice of the application for the issue of an injunction to the opposite party before the injunction is granted. But in exceptional cases "where the object of granting the injunction would be defeated by the delay", no notice need be sent to the opposite party and the application for injunction may be granted forthwith. In that case, no doubt, the injunction will be granted until further orders. When the Court grants an ex parte injunction, R. 3 does not contemplate the issue of the notice of the application to the opposite party. But under R. 4, liberty is reserved for the opposite party against whom an ex parte injunction has been issued to make an application to the Court to discharge or vary or set aside the injunction that has been issued. It is clear from a reading of Rr. 1 to 4 that whenever an ex parte injunction is issued, the application is disposed of finally and the order is one made under R. 1 or R. 2 as the case may be. But when the Court does not think that "the object of granting the injunction would be defeated by the delay", and issues a notice of the application to the opposite party, it does not dispose of the application made under R. 1 or R. 2. That application is still pending and will be disposed of after hearing the opposite party in pursuance of the notice issued to him. 2. The order of the Court below was not appealable as it was not a final order on the application for temporary injunction but only a preliminary order refusing to issue an ad interim injunction.
Final Decision: Revision allowed.
Based on the provided legal document, the key points are as follows:
An order refusing to issue an ad interim injunction under Rule 3 of Order 39 of the Civil Procedure Code is generally not appealable. This is because such an order is considered a preliminary or intermediate decision, not a final disposal of the application for temporary injunction (!) (!) .
When the court refuses to grant an ex parte injunction but issues notice to the opposite party, it is not passing a final order on the application for injunction, and consequently, no appeal lies from such an order (!) (!) .
If the court grants an ex parte injunction, then an appeal is permissible because the application under Rules 1 and 2 of Order 39 is deemed disposed of, and the order is considered a final one on that application (!) (!) .
The refusal to grant an ex parte injunction, especially when the procedure under Rule 3 has not been followed or when the court has not applied its mind to whether the object of granting the injunction would be defeated by delay, is not appealable and can be questioned in revision only if there has been a material irregularity or illegality in the exercise of jurisdiction (!) (!) .
The exercise of inherent jurisdiction to grant temporary injunctions is within the discretion of the trial court. If the court refuses to exercise this jurisdiction properly, the decision cannot be challenged by appeal, but may be subject to revision if there is a material irregularity or illegality (!) (!) .
An order that is not passed under the specific provisions allowing appeals (Rules 1, 2, 4, or 10 of Order 39) cannot be appealed. Orders merely issuing notice or refusing ex parte injunction without final disposal are generally not appealable (!) (!) .
The discretion to grant or refuse an injunction must be exercised judiciously, considering whether there is a real risk of irreparable injury, and whether the object of the injunction would be defeated by delay. Orders made without proper application of this principle may be subject to revision (!) (!) .
When an application for injunction is not bona fide or is made with mala fide intentions, the court's refusal to grant such an injunction is justified and not subject to appeal or revision (!) .
The procedural requirements, such as issuing notice before granting a temporary injunction, are mandatory. Failure to follow these procedures can render the order non-appealable and may be questioned in revision if there has been a jurisdictional irregularity (!) (!) .
In cases where the court fails to consider whether the object of granting the injunction would be defeated by delay, or acts without applying its mind to this essential aspect, the order may be subject to revision due to jurisdictional irregularity (!) .
The court has the authority to exercise its inherent jurisdiction to grant temporary relief in the interests of justice, especially when statutory procedures are not followed or when the circumstances warrant urgent intervention (!) .
A party seeking an injunction must demonstrate a prima facie case and show that there is a likelihood of irreparable or irremediable injury if the injunction is not granted. Orders should not be made solely on conjecture or without proper consideration of the facts (!) (!) .
When an appeal is dismissed as incompetent because the order was not passed under the appropriate rules, the matter can be reconsidered in revision if there are grounds of jurisdictional irregularity or miscarriage of justice (!) (!) .
The court’s decision to grant or refuse an injunction should be based on a careful evaluation of the facts, legal principles, and procedural requirements, with proper application of judicial discretion (!) (!) .
Overall, the legal framework emphasizes that only final orders on the application for temporary injunction are appealable, and orders that are interlocutory or procedural in nature are generally not subject to appeal but may be challenged in revision if irregularities are present (!) (!) .
Please let me know if you need further clarification or assistance with specific legal questions related to this case.
Mushtaq Ahmad, J. :- This is a plaintiffs appeal against an order refusing an injunction.
2. The plaintiff is a firm dealing in tents and brushes, etc., for which it has to employ a large body of workmen and labourers. The defendants are the representatives of those workers in the employ of the plaintiff concern. There was a dispute between the parties with regard to the defendants right to receive from the plaintiff certain sums, and the U. P. Governor, on 25-2-1947, referred the same under R. 81, Defence of India Rules for adjudication to a particular officer of the Government. This officer made an award on 16-5-1947, that the plaintiff firm should pay roughly Rs. 40,000 as bonus to the workers in its employ. The plaintiff objected to this award and filed a Suit No. 73 of 1947 in the Court of the Civil Judge, Kanpur to obtain its cancellation. In this suit, the plaintiff made an application praying for a temporary injunction restraining the defendants from recovering the amount under the aforesaid award.
3. The Court below passed a very short order on this application in the following words :
"Civil Court vacation is near at hand. In this case intricate questions of law are involved and I cannot issue even ex parte injunction off hand. Both the parties are to be heard on the date to be fixed for hearing of injunction application. The applicant wants an injunction against the Governments award. Order Rejected".
4. I take this order not as finally refusing the application for injunction but surely as refusing to issue an ad interim injunction, inasmuch as the learned Judge clearly said that both the parties were to be heard on the date to be fixed for the hearing of the injunction application.
5. A preliminary objection was taken by the learned counsel for the respondents that the order, not being a final order on the application for temporary injunction but only a preliminary order refusing to issue an ad interim injunction, was not appealable under O. 43, R. 1 (r) of the Code. Now O. 39, R. 1 of the Code allows the Court in which the suit is filed to "grant a temporary injunction .................. until the disposal of the suit or until further order", and in R. 3 of that Order it is provided that the Court shall direct notice of the application to be given to the opposite party, except where it appears that the object of granting the injunction would be defeated by the delay. That is to say it may not issue notice to the opposite party, where there is a danger of this object being lost, and issues an injunction, of course ad interim, straightway. Such an order, in my opinion, would be covered by the words "until further order", which R. 1 of O. 39 concludes. It was argued that an order of this character could not be conceived to be one on the application for temporary injunction. Where an application purporting to be for such injunction is filed, there are three alternative orders that may. possibly be made by the Court on that application. Firstly, it may be rejected forthwith, secondly, its final disposal may be postponed until after the opposite party has been heard, no ad interim injunction being granted, and lastly, an order granting an ad interim injunction, and then, after the Court has heard the opposite party, disposing of the application finally. In all these cases, it would be an order essentially on the application for temporary injunction, there being no other application at the time for that purpose. If the order is to take effect not for the period of the pendency of the suit, that is to say, to use the words of R. 1, 0. 39, not "until the disposal of the suit", it may take effect only "until further orders" if it is one only for an ad interim injunction, having the effect of a stay order. In all these cases, it would be an order under R. 1, O. 39 and not outside that rule. This being so, again in all these cases, it would be appealable under O. 43, R. 1 (r) of the Code.
6. It was contended by the learned
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