Point of Law: maintainability of misc. appeal under Order 43 Rule (1) (r) CPC before six months cannot be claimed and hence, the same would not be maintainable -Since, maintainability of such appeal against order passed in exercise of powers under Proviso to Rule 3 of Order 39 CPC does not come from the statutory provision i.e. Order 43 Rule (1) (r) CPC but is as per or comes from the judgments rendered, therefore, even if such appeal is maintainable, it has to be seen when it can be entertained.

JUDGMENT :

1. Heard Sri Pradeep Kumar, learned Senior Counsel assisted by Sri Onkar Nath Vishwakarma, learned counsel for the petitioners through video conferencing and Sri Arvind Srivastava along with Sri Arvind Kumar Tiwari, learned counsel for the caveator defendants-respondents and perused the record.

2. With the consent of learned counsel for the parties, present petition is being decided at this stage itself.

3. Present petition has been filed for setting aside the order dated 27.8.2020 passed by District Judge, Pilibhit in Misc. Appeal No. 12 of 2020 (Ranjit Kaur and others vs. Gurmej Singh and others).

4. By the order dated 5.8.2020 the trial court has granted an ex-parte interim injunction by recording reasons. Defendant no. 1 is the purchaser of the property from one of the co-sharers. The order of ex-parte temporary injunction was granted and the plaintiff was directed to comply with the provision of Order 39 Rule 3 CPC and 28.8.2020 was fixed for hearing for temporary injunction application. The defendant after receiving the notice filed misc. appeal on 20.8.2020 prior to the date fixed by the trial court, which was decided by the lower appellate court vide impugned order dated 27.8.2020, whereby the order of trial court granting interim order was rejected.

5. By drawing attention to the prayer clause of the plaint Sri Pradeep Kumar, learned Senior Counsel submitted that the suit was for cancellation of the sale deed and for injunction both. This fact has been noticed by the lower appellate court at internal page 2 of the order. However, it is reflected from perusal of internal page 5 and internal page 13 (paragraph 23) that the lower appellate court proceeded as if the suit was injunction suit simplicitor and therefore, the order was set aside. Submission is that the order is wholly illegal.

6. Learned counsel for the defendant-respondent supported the impugned order.

7. That apart, this Court has put a pointed query to learned counsel appearing for the respondents that how the misc. appeal against the ex-parte injunction was maintainable and/or entertainable?

8. Learned counsel for the respondents by placing reliance on decision of Full Bench of this Court in the case of Zila Parishad, Budaun and others vs. Brahma Rishi Sharma 1970 AIR (Allahabad) 376 (FB) submitted that the misc. appeal filed by the defendants under Order 43 Rule (1) (r) CPC was maintainable. Paragraphs 9, 10, 11, 12, 13 and 16 of the aforsaid judgment are quoted as under:-

"9. Order 43, Rule (1) (r) pertinently reads:

"An appeal shall lie from ..... an order under Rule 1, Rule 2..... of Order XXXIX."

10. Re. Question (1): It is now to be seen whether an ex parte order of Injunction falls within the purview of Rule l(r) of Order 43.

11. Two things deserve notice at threshold. Firstly, the language of Rule l(r) is unhedged and broad. Secondly, courts should lean in favour of an interpretation which expands rather than shrinks a remedial right. A remedial provision of law is generally construed liberally. Rule 1 (r) creates a remedial right of appeal for protection of substantial and substantive rights.

12. An ad interim injunction may be granted under Order XXXIX or Section 151 in some cases. No appeal lies against an order under Section 151. be it ex parte or otherwise. An ex parte order of injunction made under Order XXXIX will fall either under Rule 1 or Rule 2. There is no other provision under which such an order can be made. Rule 1 (r) of Order 43 does not say that an appeal shall lie from a final order under Rule 1 or Rule 2 of Order XXXIX. No adequate reason is shown for interpolating the word 'final' before 'order' in Rule 1(r). Courts do not ordinarily make additions in enactments. That is a legislative function.

13. Let us now examine the scheme of Rules 1 to 4 of Order XXXIX. Rules 1 and 2 provide for the making of an interim order of injunction. Rule 3 firstly provides that an interim injunction should ordinarily be granted after notice to the adv