IMPORTANT POINT
Order of interim injunction passed in Regular Civil Appeal filed under Order 41 of CPC is appealable under Order 43 Rule (1) Sub-Rule (r) of CPC..

Riyaz I. Chagla, J.—This is a reference emanating from an order passed by the learned Single Judge of this Court on 6th February 2018 (for short “the reference order”). By administrative order dated 14th February 2018 passed by the Hon’ble the Acting Chief Justice, the issue/question framed by the learned Single Judge in the reference order has been referred to a Division Bench headed by one of us (A.S. Oka, J.).

2. The question framed by the learned Single Judge of this Court reads thus:—

“Whether the order of interim injunction passed in Regular Civil Appeal filed under Order 41 of the CPC is appealable under Order 43 Rule (1) subRule (r) of the CPC?”

3. The learned Single Judge had answered this question in the negative and had held the Appeal from Order to be not maintainable. The learned Single Judge had expressly held in paragraph 20 thus:—

“With due respect and humility, I am not in agreement with the view taken by earlier three Judges in the cases of Krishna Pandurang Wankhede , Shri Shivaji Shankarrao Patil and Subhash Sheti Pawar holding that the order of interim injunction passed in appeal filed under Order 41 of the CPC is appealable under Order 43 Rule (1) subrule (r) of the CPC. Certain very relevant provisions of Section 104 and Order 43 of the CPC were not pointed to the earlier benches and, therefore, those provisions were not at all discussed. In my considered view, under given circumstances, it is not a case where different view is taken on a issue, but there was no opportunity to discuss the issue. However, it is better to refer this issue to the larger bench for more authoritative pronouncement....”

4. Since the view taken in one of the cases referred to in the above extracted paragraph viz. Shri Shivaji Shankarrao Patil has been taken by one of us (A.S. Oka, J.), we had before hearing the reference, enquired from the Advocates appearing for the parties as to whether they were agreeable to have the reference decided by us. As the Advocates were unanimously agreeable to have the reference decided by us, we have proceeded with hearing of this reference.

5. The brief background of facts is necessary:

(i) In 1999, the Respondent herein had filed Regular Civil Suit No. 351 of 1999 before the learned Single Judge, Junior Division, Wai for simplicitor injunction against the Appellants’ father and Appellant to whom the Respondent had claimed were unlawfully obstructing the Respondent’s possession of the suit property.

(ii) By a judgment and decree dated 8th October 2010, the Trial Court dismissed the Suit and held that the Respondents had failed to prove possession of the suit property and/or unlawful obstruction at the hands of the Appellant’s father as well as the Appellant herein who was one of the Defendants in the said Suit.

(iii) The Respondent preferred an Appeal against the judgment of the Trial Court and as there was delay in preferring the Appeal, the Respondent had taken out an Application for condonation of delay.

(iv) The Application for condonation of delay being Miscellaneous Civil Application No. 223 of 2016 was allowed by the order dated 17th March 2017 passed by the learned District Judge, Satara.

(v) The Respondent herein made an Application for interim injunction in the Appeal being the Regular Civil Appeal No. 117 of 2013. The learned District Judge allowed the Application and granted an interim injunction in favour of the Respondent herein on the ground that the Respondent had made out a prima facie case and proved that the balance of convenience lies in the Respondent’s favour. It is held that the Appellant herein had failed to adduce any sort of documentary evidence to prove their physical possession of the suit property.

(vi) The Appellant preferred an Appeal from Order in this Court wherein the Appellants had challenged the power of the lower Appellate Court to grant interim injunction. Further grounds of Appeal were raised in the Appeal from Order including whether interim relief a