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1997 DIGILAW 283 (ORI)

PADMNAV DAS v. DHABALESWAR SATPATHY

1997-10-17

P.K.MOHANTI

body1997
JUDGMENT : P.K. Mohanti, J. - This civil revision is directed against an interim order of injunction restraining the Petitioners from carrying on legal profession unauthorisedly. 2. The Petitioner-opposite party is a Mukhtar practising at Bonaigarh. He filed Title Suit No. B of 1973 for a permanent, injunction restraining the Defendants - Petitioners from carying on legal profession unauthorisedly. The suit was filed on 19-12-1973. Along with the plaint the Petitioner, filed a petition under Order 39 Rule 2, CPC for issue of a temporary injunction against the Defendants. The learned Munsif posted the matter to the next day for hearing and directed issue of notice to the Defendants to show cause why temporary injunction should not be issued against them. On the next gay, i.e. 20-12-1973 the Defendants applied for time for one month to file show-cause. The learned Munsif allowed time till 22-12-1973. On,that date the Defendants again applied for one, months time on the ground that the local lawyers were unwilling to appear on their behalf and they wanted to engage a lawyer from outside. The learned Munsif while allowing time till 10-1-1974 made an order of interim injunction in the following terms: Since, prima facie, the acts of the Defendant are likely to cause injury to the Petitioner and since the Defendants have not shown any interim cause, which they can as well do, even though no lawyer supports them, issue an interimorder of injunction restiaining the Defendants from the various acts alleged against them in the petition of the Petitioner copies of which have since been served on Defendants. Put up on the date fixed for the Defendants to show cause why this order should not be made absolute by engaging lawyer of their choice. Aggrieved by this order, the Defendants have come up in revision. 3. The learned Counsel appearing for the Petitioner -oposite party raised a preliminary objection that the civil revision is not maintainable as the impugned order is, appealable under Order 43 Rule 1(r), Code of Civil Procedure. In support of his contention he relied on a decision reported in L.D. Meston School Society Vs. Kashi Nath Misra, wherein it was held that an ex parte order of injunction is to be construed as an order passed under Rule I, or Rule 2 of Order 39 and, as such, an appeal lies under Order 43, Rule 1(r), Code of Civil Procedure. Kashi Nath Misra, wherein it was held that an ex parte order of injunction is to be construed as an order passed under Rule I, or Rule 2 of Order 39 and, as such, an appeal lies under Order 43, Rule 1(r), Code of Civil Procedure. As against this contention it was urged on behalf of the Petitioners that it is only a final order under Order 39, Rules 1 or 2 which is appealable under Order 43, Rule 1(r) CPC but the impugned order being an ad interim order it can be challenged by a civil revision. In support of this contention the Petitioners relied upon a later decision of the same High Court reported in Raja Deo Singh v. Kr. Shambho Krishna Narain 63 (1960) All. LJ 124 wherein it was observed that the appeal provided against an order under Order 39 is against the final orders and not against interim orders 4. There is a plethora of authorities in support of the view expressed in L.D. Meston School Society Vs. Kashi Nath Misra, and the consensus of opinion is in favour of appeal ability of an ad interim order of injunction : In the case of Zila Parishad, Budaun and Others Vs. Brahma Rishi Sharma a Full Bench of the Allahabad High Court overruled the decision in Raja Deo Singh v. Kr. Shambho Krishna Narain 63 (1960) All. LJ 124 and affirmed the view expressed in L.D. Meston School Society v. Kashi Nath Misra 63 (1960) All. LJ 124. Their Lordships relied on the decisions reported in Shyam Behari Singh v. B. Biseswar Dayal Singh and Ors. Balabh Das Kothari and Ors. v. M. Muhammad Ishaq and Ors. AIR 1933 Lab. 282 Devasahayam Nadar Anthonimuthu Nadar AIR 1953 Ttrv. Coch. 240 v. Arumukhan Nadar Oalayan Nadare and Chathakni Ramulu v. Chathakni Ganga Ram AIR 1953 Hyd. 138, wherein an ad interim order of injunction was held to be appealable under Order 43, Rule 1(r), Code of Civil Procedure. It was contended before the Full Bench that an appeal is contemplated only from a final order disposing of an application for are interim injunction after contest and that an ex parte interim order is merely an interlocutory order not subject to appeal. It was contended before the Full Bench that an appeal is contemplated only from a final order disposing of an application for are interim injunction after contest and that an ex parte interim order is merely an interlocutory order not subject to appeal. Repelling the contention, their Lordships held that once the Court, after perusing the application and affidavit, comes to the conclusion that the case is a fit one in which temporary injunction should be issued ex parte the Court takes a final decision in the matter for the time being and the expression of this decision is a final order for the duration It is passed and that such an order is, contemplated by Rules 1 and 2 of Order 39, Code of Civil Procedure. . In Saraju Prashad Singh Vs. Gangaprosad Shah and Others, the learned Munsif passed an order of ad interim injunction after hearing one of the Defendants who appeared on the day the suit was instituted and issued notice on the remaining Defendants to show cause as to why an ad interim injunction should not issue. It was contended before their Lordships that as the order of the Munsif issuing the : ad interim injunction showed that he had not finally made up his mind on the question of the issue of an injunction, the order was not final and, therefore, was not subject to appear. Their Lordships held: In our opinion, the argument confuses the temporary and limited nature of the injunction with the question of the finality of the order it self. The order, so far as it ran, though it was an order for an injunction for a limited period was clearly final. The Petitioner wanted to restrain the opposite parties immediately from the time of filing of his plaint and for ever. The period may be divided into three parts : first he wanted an immediate order to operate at once and temporarily until the Ct. could give notice and hear the remaining Defendants; secondly, an order to cover the period from the time of hearing the Defendant till the final disposal of the suit; and thirdly art order in the suit it self for a permanent injunction. Each of the orders would be a final order so far as it went. could give notice and hear the remaining Defendants; secondly, an order to cover the period from the time of hearing the Defendant till the final disposal of the suit; and thirdly art order in the suit it self for a permanent injunction. Each of the orders would be a final order so far as it went. In our opinion, the ad interim injunction was clearly one made under Order 39, Rule 2 and was appealable under Order 43, Rule 1, Code of Civil Procedure. 6. In United Club Nowgong v. Nowgong Football Association of Nowgong and Ors. AIR 1951 Cal. 446 , it was argued before their Lordships that Order 43 which provides for an appeal against an order presupposes the existence of an order as defined in Sub-section (sic) of Section 2, CPC and if a particular order does not come within the definition of the order as defined in the Code of Civil Procedure, no appeal under Order 43, Rule 1(r) would lie. Relying on the decisions reported in Saraju Prashad Singh Vs. Gangaprosad Shah and Others, and L.D. Meston School Society Vs. Kashi Nath Misra their, Lordships held that an order granting ex parte interim injunction is appealable under Order 43, Rule 1(r), Code of Civil Procedure. 7. It has to be held that the principles, stated in the above rulings are sound and well established respectfully agree with the views expressed in the decisions cited above. 8. Mr. C.V. Murty, the learned Counsel appearing for the Petitioners endeavoured to build an argument that the impunged order is in effect an order passed u/s 151, CPC and hence it can be challenged by a civil revision. I am unable to accede to this contention. The application filed by the Petitioner along with the plaint was one under Order 39, Rule 2, CPC and the same was registered as a Miscellaneous case under Order 39, Rule 2, Code of Civil Procedure. The word 'injured' in Order 39, Rule 2 means any invasion or infraction of a legal right giving rise to a right of action at the instance of the party claiming that right. The wrongful act alleged to have been committed by the Petitioners can be said to be an injury within the meaning of Order 39, Rule 2 of, the Code of Civil Procedure. The wrongful act alleged to have been committed by the Petitioners can be said to be an injury within the meaning of Order 39, Rule 2 of, the Code of Civil Procedure. On a reading of the impugned order in the light of the facts stated in the application, it is crystal clear that the learned Munsif purported to pass the order under Order 39, Rule 2 CPC and not u/s 151, Code of Civil Procedure. 9. There is no jurisdictional confirmity or material irregularity in the impugned order so as to the revisional powers of this Court u/s 115 of this Court under Civil Procedure. 10. In view of my above findings. Revision is dismissed, but without any order as to costs. In parties are directed to appear before the Munsif on 18-11-1974 when the Defendants-Petitioners may file their objection to the ad interim injunction. The learned Munsif should finally dispose of the application for temporary injunction within a fortnight thereafter. I also direct that the learned Munsif should proceed with due despatch and attempt to dispose of the suit within three months from today. The records be immediately sent back. Final Result : Dismissed