D. K. SETH, J. ( 1 ) THE petitioner Nos. 1 and 2 filed Original Suit No. 610 of 1987, against the opposite party No. 4 Mohammad Shafique. While the opposite parties Nos. 4 to 8 had filed Original Suit No. 509 of 1997 against the petitioners. Both the suits were filed against each other by the parties and claiming for injunction, concerning the same suit property. In both the suits application for temporary injunction was filed by the respective plaintiffs. Learned trial court directed for issuance of notice in both the cases. Being aggrieved both the parties preferred two civil revisions being Civil Revision No. 167 of 1997 and Civil Revision No. 200 of 1997. Both the civil revisions were disposed of by a common order dated 6th March. 1998 passed by the learned district Judge, Saharanpur, dismissing both the civil revisions and directing the trial court to decide the application for temporary injunction after affording opportunity to the parties. These orders have been challenged by the petitioners in the present writ petition. ( 2 ) SRI Vikram Nath, learned counsel for the petitioners points out that under Rule 3 it is incumbent on the Court to record reasons as to why it is not granting ex-parte injunction while issuing notices only. In the present case the trial court had failed to exercise its jurisdiction in directing for issue of notice only without granting ad interim injunction having applied its mind to the facts and circumstances of the case. He further contends that the learned revisional court has dismissed both the civil revisions without coming to the finding that the order passed by the trial court was correctly passed and was valid and legal and without coming to any finding that this was not a case where injunction should have been granted only after issue of notice and not before. According to him, without any such finding simply because the parties are appearing against each other in the respective suits, civil revision was dismissed, is altogether a misplaced ground. Therefore, both the orders passed by the trial court and the revisional court should be set aside and injunction order should be granted. According to him, without any such finding simply because the parties are appearing against each other in the respective suits, civil revision was dismissed, is altogether a misplaced ground. Therefore, both the orders passed by the trial court and the revisional court should be set aside and injunction order should be granted. In support whereof he contends that the revisional court has granted ad interim injunction after having found that the delay would defeat the object and, therefore, it is a fit case where injunction should have been granted by the revisional court when once it had found that it is a fit case for grant of injunction. ( 3 ) SRI C. B. Singhal, learned counsel for the respondents on the other hand contends that the order that was passed is under Order XXXIX. Rules 1 and 2 and therefore, the same is appealable and the revision was not maintainable. Therefore it is not open to the learned counsel for the petitioners to challenge the said order passed in the revision. He also contends that even on merit also there is nothing which will entitle the petitioners for an injunction order. He then contends that by this time both the parties have received notices and therefore the question of grant of ad interim injunction, without notice has become redundant and, therefore, the order passed by the revisional court is legal and valid. ( 4 ) I have heard both the learned counsel for the parties at length. ( 5 ) RULE 3, Order XXXIX of the Code only prescribes procedure as to how and in what manner jurisdiction under Rules 1 and 2 could be exercised in case of grant of ad interim injunction. Rules 1 and 2 has two stages, (i) the grant of ad interim injunction pending injunction application and. (ii) the grant of temporary injunction order pending disposal of the suit while disposing of the application for temporary injunction. Therefore, grant or refusal of ad interim injunction is an order under Order XXXIX. Rules 1 and 2 of the Code. Whereas Rule 3 prescribes only mode and procedure, as to how such an order is to be passed. The order under Order III is, therefore, may not be appealable but as soon as it is refused, it becomes an order under Order XXXIX, Rules 1 and 2 of the Code and thus appealable under Order XLIII. Whereas Rule 3 prescribes only mode and procedure, as to how such an order is to be passed. The order under Order III is, therefore, may not be appealable but as soon as it is refused, it becomes an order under Order XXXIX, Rules 1 and 2 of the Code and thus appealable under Order XLIII. Rule I (2) of the Code. ( 6 ) JURISDICTION to grant injunction is derived by the Court from Section 94 (c) read with Order xxxix. Rules 1 and 2. Inasmuch as under Section 94 (c) the Court can grant injunction only if it is prescribed. The word "prescribed" in Section 94 (c) would mean as defined in Section 2 (16)" prescribed by rules". The rules which prescribe grant of temporary Injunction are Rules 1 and 2 of Order XXXIX, of the Code. ( 7 ) THE above view finds support in the case of Jagit Singh v. Rakhal Das, AIR 1988 Cal 95 . ( 8 ) WHEREAS Rule 3 requires that injunction should not be granted without issuing notice to the other side. Then it prescribes the procedure how the power under Rules 1 and 2 is to be exercised. Power to grant includes power to refuse. Thus grant or refusal both is an exercise of the power under Rules 1 and 2. Rule 3 requires that injunction can be granted even without notice only in case where the Court is of opinion that delay will defeat the object and purpose. In such case it is provided that it has to record its reason for forming such opinion. ( 9 ) THUS Rule 3 is not an independent provision. But is in aid of the exercise of the power under rules 1 and 2. It is not an enabling provision. It does not prescribe the power as contemplated in section 94 (c ). It only provides the procedure to be followed while exercising the power under rules 1 and 2. ( 10 ) THEN it requires recording of reason when injunction is granted. It does not require recording of reasons if notices are directed to be issued. Thus Rule 3 prescribes the procedure for grant of injunction before issuing notice. If ad interim order is not passed and notices are directed to be issued without granting injunction, in that event it would amount to refusal to grant of injunction before notice. It does not require recording of reasons if notices are directed to be issued. Thus Rule 3 prescribes the procedure for grant of injunction before issuing notice. If ad interim order is not passed and notices are directed to be issued without granting injunction, in that event it would amount to refusal to grant of injunction before notice. The jurisdiction to grant or refuse injunction flows from Rules 1 and 2, it does not flow from Rule 3 which prescribes the procedure to be followed for exercise of power under rules 1 and 2 while such power is invoked for grant of ad interim order before issuing notice. ( 11 ) THE revision was filed being aggrieved by the refusal to grant ad interim injunction which, in effect, is an order under Order XXXIX. Rules 1 and 2 of the Code. If it is an order under Rules 1 and 2 of Order XXXIX, then it is appealable and no revision lies. ( 12 ) THE order granted in the revision is only an interim order which has merged in the final order passed in revision itself and cannot survive as soon the proceeding of revision is terminated unless the order passed by the revisional court grants any order of injunction. The findings with regard to the grant of ad interim injunction was an ex-parte order which does not finally determine the question and, as such, cannot be the deciding factor while finally disposing of the revision application. It is only an interim stage, which is subject to the final decision. Therefore the contention of the learned counsel for the petitioners that since ad interim order was granted, the same should have been continued even in the final order. According to him if such a situation is conceived then in that event interim order whenever passed, is to be made absolute, which is a situation wholly contrary to the concept of legal proposition. ( 13 ) SO far as the question of maintainability of revision against the order refusing to grant ad interim injunction is concerned, this Court as back as in the year 1951, in the case of H. Beats and Company, Kanpur v. Ram Behari and others, AIR 1951 All 8 , concerned itself with the question as to whether order under Order III is appealable within the meaning of Order XLIII. Rule 1 (r) of the Code. Rule 1 (r) of the Code. There was difference of opinion between the two Honble Judges of the division Bench. Accordingly, the matter was referred to the third Judge, formulating the point, one of which was that, "is an order refusing to issue an ad interim injunction as allowed by Rule 3 of Order XXXIX, Civil Procedure Code, appealable?" This question was answered in affirmative by the learned third Judge, with the expression, "i, therefore, think that when the court refuses to grant an ex-parte injunction and issues notice to other side of the application for injunction it has passed no order under Rule 1 or Rule 2 and, therefore, no appeal can lie from such an order. But where the Court grants the application for injunction ex-parte, an appeal lies because the application made under Rule 1 or 2 is disposed of. " It also proceeds to observe further that, "where the Court below does not apply its mind to the provisions of Order XXXIX, rule 3 when it refuses to grant an ex-parte injunction, it acts illegally or with material irregularity in the exercise of its jurisdiction and revision may He. Under Rule 3 of Order xxxix, what the Court has to see when requested to grant an ex-parte injunction is whether the object of granting the injunction would be defeated by the delay". ( 14 ) SUBSEQUENTLY, this Court in the decision in the case of Lakhai v. Ram Niwas and others, AIR 1987 All 345 , learned single Judge of this Court had held that, "mere order issuing notice on an application for grant of an injunction clearly comes under the provisions of Rule 3 of Order xxxix. An order under Rule 3 of Order XXXIX, is not appealable under Order XLIII, Rule 1 (r ). It is, therefore, clear that whenever a Court passes an order for issue of notice on an injunction application, this order is not appealable under Order XLIII, Rule 1 (r), Civil Procedure code". But, however, the single Judge decision rendered in 1987 does not refer to 1951 decision in the case of M/s. H. Bevis and Company (supra ). It is, therefore, clear that whenever a Court passes an order for issue of notice on an injunction application, this order is not appealable under Order XLIII, Rule 1 (r), Civil Procedure code". But, however, the single Judge decision rendered in 1987 does not refer to 1951 decision in the case of M/s. H. Bevis and Company (supra ). ( 15 ) SRI Singhal, learned counsel for the respondent has relied on the decision of Sikkim High court in the case of Ashok Tehring Lama v. Tehering Wangdi, AIR 1982 Sikkim 20, and relying on the ratio decided therein contends that an order under Order XXXIX. Rule 3 refusing to grant injunction is ineffect an order under Rules J and 2 of the Code, The ratio decided in the said case was supported by reason that Rule 3 prescribes procedure as to how jurisdiction under Rules 1 and 2 is to be exercised. The grant or refusal of injunction is the power exercised under Rules 1 and 2 of the Code. Rule 3 does not empower the Court to grant injunction. The jurisdiction is conferred by Rules 1 and 2. While Rule 3 prescribes procedure as to how this jurisdiction is to be exercised. The reasons appear to be sound. But the decision of Sikkim High Court has only persuasive value. On the face of the Divison Bench judgment of this Court. I cannot persuade myself to derive persuasive value from the judgment of Sikkirn High Court that too out of a single Judge decision. ( 16 ) THOUGH it appears that there arc substance in the submission of Sri Singhal. But by reason of division Bench judgment of this Court by which I am bound I am unable to persuade myself to concede with the contention of Sri Singhal, about the maintainability of revision in the present case. ( 17 ) SO far as the question on merit is concerned, admittedly by the time both the parties have appeared and both the parties have received notice of the application for injunction, where object would be defeated or not is no more germane since sufficient time has elapsed since the institution of suit sometimes in the year 1997. ( 17 ) SO far as the question on merit is concerned, admittedly by the time both the parties have appeared and both the parties have received notice of the application for injunction, where object would be defeated or not is no more germane since sufficient time has elapsed since the institution of suit sometimes in the year 1997. The parties had remained without injunction quite for sometime and the trial court having been directed by the revisional court to decide injunction application at the earliest, I do not find that there is any infirmity in the said order. The question that the revisional court had granted ad interim injunction having been satisfied that the delay would defeat the object, is in effect interim order, which merges with the final order. Such an interim order cannot be taken to be conclusive and sacrosanct. The interim order is always subject to the final decision after hearing the parties. In that way such an order is an interim order in nature subject to further decision after hearing the case finally. While deciding it finally the Court may have different opinion and may pass different orders. ( 18 ) BUT in the present case, as rightly pointed out by Sri Vikram Nath, learned counsel for the petitioners, the appeal court did not address itself to the question as to whether the trial court was justified in granting injunction without issuing notice and also to ascertain as to whether in the present case same situation survive even at the time of disposal of the revision. But then this would be too technical a point in the facts and circumstances of the case where the parties have appeared in the case. Therefore, it would be desirable that both the parties should be heard after they have appeared because the stage of ad interim injunction have also expired. The revisional court should have decided the question on the basis of affidavits filed by both the parties and come to a conclusion with regard to injunction application. But this question was not open to the revisional court since only order refusing grant of interim injunction was the scope of jurisdiction, that was the lis-pending before the revisional court. The application for temporary injunction was not the subject-matter of revision which was only grant or refusal of ad interim injunction without issuing notice. But this question was not open to the revisional court since only order refusing grant of interim injunction was the scope of jurisdiction, that was the lis-pending before the revisional court. The application for temporary injunction was not the subject-matter of revision which was only grant or refusal of ad interim injunction without issuing notice. Therefore, the revisional court if had undertaken such exercise then it would have exceeded its jurisdiction and would have acted beyond the scope of its jurisdiction. ( 19 ) NOW both the parties having appeared and having notice the grant of ad interim injunction without notice seems to disappear. Therefore the revisional court has right in directing the trial court to decide the question after hearing the parties with regard to grant of injunction on the basis of application for temporary injunction. ( 20 ) IN that view of the matter I am not inclined to interfere with the order impugned. The writ petition therefore, fails and is accordingly dismissed. There will however, be no order as to costs. ( 21 ) IT is submitted that both the parties have filed their counter and rejoinder-affidavits and the application for temporary injunction is ripe for hearing. Therefore, it is desirable and expected that the trial court shall decide both the injunction applications simultaneously after hearing both the parties, as early as possible, preferably within a period of one month from the date a copy of this order is communicated to the Court below. ( 22 ) LET a copy of this order be given to the learned counsel for the parties on payment of usual charges within a week.