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2001 DIGILAW 236 (CAL)

Rekha Patra v. Minu Chakraborty

2001-04-25

SUBHRO KAMAL MUKHERJEE

body2001
Judgment 1. Defendant No.5 is the petitioner in this revisional application against an order dated February 21, 1997 whereby and whereunder the learned trial Judge extended the ad interim order of injunction till the hearing of the application for injunction on the prayer of the plaintiff. 2. In a suit for declaration and injunction filed by the opposite party No.1, on February 7, 1997 an exparte order of injunction was passed. On February 21, 1997, the defendant No.2 entered appearance in the said suit and prayed for time to file the written objection. The learned trial Judge accepted the prayer of the defendant No, 2 and fixed March 18, 1997 for hearing of the application for injunction and directed the written objection, if any, to be filed in the meantime. On the said date, the plaintiff filed an application praying for extension of interim order, which was initially granted for limited period, till the hearing of the application for injunction. Considering the said application, in presence of the defendant No.2, the learned trial Judge directed that the interim order of injunction granted on February 7, 1997 would continue till the disposal of the application for injunction. It appears from the certified copy of the order sheet that the defendant No.5, who is the petitioner before this Court, had already entered appearance and has filed her written objection to the application for injunction. 3. Mr. Tapas Mukherjee, learned Advocate appearing for the opposite party No.1 submits that the order impugned is an appellable order under Order 43, Rule 1(r) of the Civil Procedure Code. I find substance in the argument of Mr. Mukherjee. Under Order 43, Rule l(r) of the Civil Procedure Code and appeal shall lie from the order passed in connection with an application under Order 39, Rules 1, 2, 2A, 4 and 10 of the Civil Procedure Code. This extension of the interim order has been granted in exercise of the power of the learned trial Judge under Order 39, Rules 1 and 2 of the Civil Procedure Code and definitely the order is an appellable one. 4. This extension of the interim order has been granted in exercise of the power of the learned trial Judge under Order 39, Rules 1 and 2 of the Civil Procedure Code and definitely the order is an appellable one. 4. It is submitted on behalf of the petitioner that the petitioner is not challenging the merits of the order of injunction, but is challenging the procedure by which the interim order has been granted, that is, no reason has been given by the learned trial Judge and, therefore, the petitioner is aggrieved as has come to this Court. 5. The petitioner bad better remedy by way of an appeal on facts and law. The petitioner is not entitled to apply under Section 115 of the Civil Procedure Code against an order against which an appeal lies either to this Court or any other subordinate Court empowered to hear revisional application. 6. The revisional application is, accordingly, dismissed as not maintainable. However, I make it clear that I have not gone into the merits of the case of either of the parties and the learned trial Judge will be free to decide the application for injunction on merits and in accordance with law. In view of the long pendency of the application for injunction I direct the learned trial Judge to dispose of the application for temporary injunction positively by July 15, 2001. In order to secure compliance of this order I hereby authorise the learned trial Judge to refuse any prayer for adjournment made by either of the parties and no adjournment will be granted excepting recording a reasoned order therefor. 7. There will be no order as to costs. 8. Let a copy of this order be communicated to the learned trial Judge by a special messenger at the cost of the opposite party No.1 and such cost is to be put in by next Wednesday. After delivery of this order Mr. Bose, learned Advocate appearing for the petitioner prays for leave to convert the revisional application into an appeal. The appeal lies before the learned District Judge and, as such, the prayer is not misconceived and, accordingly, is rejected.