Refusal to grant ex parte injunction is appealable; procedural adherence is vital for determining appealability under CPC.

1. Heard learned counsel for the parties.

2. The petitioner plaintiffs have challenged the order of the District Judge dated 12.04.2006 whereby their appeal preferred under Order XLIII Rule 1 (r) C.P.C. has been dismissed as not maintainable.

3. The plaintiffs filed a suit before the trial court being original suit No. 165 of 2006 in which they also moved an application under Order XXXIX Rules 1 and 2 C.P.C. praying for grant of temporary injunction. The trial court vide its order (Annexure No.7) dated 01-04-2006 instead of passing an order granting exparte injunction, directed issuance of notice to the respondents-defendants fixing a date inviting objections/counter affidavit from them and also fixed a date for disposal of the said temporary injunction application. Against this order of the trial court the petitioners preferred an appeal before the District Judge concerned which has been dismissed as not maintainable by the impugned order.

4. While challenging the aforesaid order of the District Judge, the learned counsel for the petitioner has tried to emphasize that an order declining grant of an exparte temporary injunction, is an appealable order and the impugned order of the District Judge holding that the appeal was not maintainable, is wholly erroneous and requires interference in this petition. The learned counsel for the petitioner has placed reliance upon the case law of Israr and another Vs. District Judge, Saharanpur and others , reported in 1999 (2) Allahabad Rent Cases 74.

5. The question which has arisen for decision here is whether an order declining grant of an exparte injunction order in favour of the plaintiff actually amounts to an order liable for challenge in an appeal under the provisions of order XLIII Rule 1 (r) C.P.C. or not. The Hon'ble Single Judge in the aforesaid case of Israr (Supra) while holding that any order passed by the trial court granting or not granting an exparte injunction in favour of plaintiff, is an order duly covered by the provisions of Order XXXIX Rules 1 and 2 C.P.C. and, therefore, it is held to be an appealable order. There is no dispute that an order granting exparte injunction in favour of the party to the suit is also an order under Order XXXIX Rules 1 and 2 C.P.C. and the view is definitely settled on this point. In order to appreciate the conclusions arrived at by the Hon'ble Single Judge in the aforesaid case, that an order not granting an exparte order on such injunction application and directing issuance of notice there on, is also appealable order, it would be relevant to extract below the provisions of Order XXXIX Rules 1, 2,3 and 4 C.P.C. as well as the provisions of Section 94 C.P.C. and also the provisions of Order SLIII Rule 1 (r) C.P.C. Order XXXIX (Rule 1,2,3, and4)
1. Cases in which temporary injunction may be granted.- 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 solid in execution or a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditos,
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may be 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 [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispu