The main legal point established in the judgment is the appealability of ex parte orders of temporary injunction under Order 43 Rule 1(r) of the Code of Civil Procedure.

Rakesh Srivastava, J.

On 7.4.2014, the petitioner - plaintiff filed a suit for damages and permanent injunction against the defendant - respondent no.3. Along with the institution of the suit the petitioner moved an application (6 Ga) under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short "CPC") seeking temporary injunction so as to restrain respondent no.3 or her men or agents, or her representatives or any person claiming through her or under her from causing damage or breaking Northern walls and pillars of the three storeyed residential house of the petitioner bearing no.SS-II-D-I/1517, LDA Colony, Kanpur Road, P.S. Krishna Nagar, Lucknow. The petitioner also filed an application for issue of commission seeking inspection of the property in dispute. The trial Court issued notice to respondent no.3 and also appointed court Amin to inspect the property in dispute. In pursuance of the order passed by the trial Court, the court Amin submitted his report dated 17.4.2014. Respondent no.3 appeared in the suit by filing vakalatnama and also filed objection against the Amin's report. Respondent no.3, however, did not file any objection to the application for grant of temporary injunction (6 Ga) moved by the petitioner along with the suit. It is alleged that respondent no.3 adopted delaying tactics by filing vakalatnama of another advocate. On 31.5.2014, when the case was called out no one appeared on behalf of respondent no.3. The trial Court passed an ex parte injunction order in favour of the petitioner.

2. Aggrieved by the order dated 31.5.2014 respondent no.3 filed a Civil Revision No.0000192 of 2014 (Smt. Rita v. Smt. Shikha Wadhwa) under section 115 CPC before the Court of District Judge, Lucknow. The petitioner raised an objection against the maintainability of civil revision. On 16.8.2014, the District Judge passed an order and held the revision maintainable. It was held that the order dated 31.5.2014 was an ex parte order, and as such the appeal against the said order was not maintainable. Relevant portion of the order dated 16.8.2014 to which the learned counsel for the petitioner has drawn the attention of this Court is quoted below :-

bl rjg voj U;k;ky; dh i=koyh esa izfroknh i{k ds mifLFkr vkus ij mldks vkifRr dk volj iznku djus ds i'pkr fo}ku voj U;k;ky; vLFkk;h fu"ks/kkKk izkFkZuki=] izi= la[;k&x&6] fnuakd 31-05-2014 dks Lohdkj djus dk vkns'k ikfjr fd;k gSA ysfdu mDr vkns'k fn0 31-05-2014 esa ;g mfYyf[kr gS fd fn0 31-05-2014 dks vLFkk;h fu"ks/kkKk izkFkZuki= ij lquokbZ ds le; izfroknh i{k dh vkSj ls dksbZ mifLFkr ugha jgk gSa vkSj oknh i{k dks ,di{kh; :i ls izkFkZuk i= x&6 ij lquokbZ ds i'pkr~ izkFkZuk i= vkns'k fn0 31-05-2014 ikfjr fd;k x;k gSA

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vkns'k

flfoy iqujh{k.k vaxhdkj dh tkrh gS] iathd`r dh tkos] i=koyh xq.koRrkiw.kZ lquokbZ ds fy, fn0 08-09-2014 dks is'k gksA

3. Subsequently, on 22.9.2014, the civil revision preferred by respondent no.3 was allowed by the District Judge. The order dated 31.5.2014 was set aside and the matter was remanded to the trial Court to pass a fresh order on merit after giving opportunity of hearing to the contesting parties. The order dated 31.5.2014 and the judgment and order dated 22.9.2014 are under challenge in the present writ petition.

4. Shri Brijesh Kumar Saxena, learned counsel for the petitioner has vehemently submitted that against an order granting temporary injunction passed under Order 39 Rule 1 and 2 CPC, the respondent no.3 had a remedy of filing an appeal under Order 43 Rule 1 (r) CPC and as such, the revision under section 115 CPC of the Code was not maintainable and the same was liable to be dismissed as such