JUDGMENT : 1. Heard Shri Gaurav Mehrotra, learned counsel for the appellants as well as Shri Yogesh Chandra Srivastava, learned counsel for the respondents and perused the record. 2. As sufficient material is available on record, the appeal with the consent of learned counsel for the parties has been heard for final disposal, at the stage of admission. 3. The instant First Appeal From Order under Order XLIII Rule 1 (r) of the Code of Civil Procedure, 1908 has been preferred by the defendants-appellants against the impugned ex-parte interim order dated 10.12.2021 passed by the Court of Civil Judge (Senior Division), Court No. 20, Barabanki in Interim Application No. GA-6 in Suit No. 663 of 2021 (Syed Mohd. Javed Naqvi and another vs. S.K.C. Eggs and others) passed under Order XXXIX Rule 1 read with Section 151 C.P.C., whereby the defendant-appellants have been restrained till the next date of listing from making any interference withdrawing/shifting 28,000 birds and from managing the business of poultry farm or in earning any profit from the poultry farm of the plaintiffs (respondents) situated at Gata No. 319 situated at Village Makhdumpur Sirsaipur, Pargana Kursi, Tehsil Fatehpur, District Barabaki, boundaries of which have been given in the plaint. 4. Brief facts necessary for the disposal of the instant appeal are that plaintiffs/respondents have instituted a Regular Civil Suit No. 663 of 2021 in the Court of Civil Judge (Senior Division), Court No. 20, Barabanki against defendants-appellants stating therein that defendant S.K.C. Eggs is a partnership firm and one Kaniz Zehra is a partner of the firm. The husband of aforesaid Kaniz Jehra namely Asif Hamid was a close friend of the plaintiffs and he insisted the plaintiffs to invest some money in their poultry farm and as the plaintiffs were inclining to invest some money, they agreed to invest their money in the firm. 5. It is further stated that plaintiff no.1 namely Syed Mohd. Javed Naqvi had remitted/invested Rs.20,60,000/- in the firm of the defendant for the purpose of purchasing chicks. Likewise plaintiff no.2 namely Syed Shadab Hasnain Zaidi had also invested huge amount in the partnership firm and both plaintiffs have invested about Rs.44,20,000/- in the firm and they were consulted by the deceased Asif Hamid with regard to each and every decision pertaining to managing the affairs of the firm and poultry farm. Likewise plaintiff no.2 namely Syed Shadab Hasnain Zaidi had also invested huge amount in the partnership firm and both plaintiffs have invested about Rs.44,20,000/- in the firm and they were consulted by the deceased Asif Hamid with regard to each and every decision pertaining to managing the affairs of the firm and poultry farm. Unfortunately aforesaid Asif Hamid had died on 27.05.2021 and on his death his wife Kaniz Zehra became the partner in the firm. 6. It is also stated that at present plaintiff no.1 is managing the affairs of the poultry farm and there are about 28,000 birds kept in that poultry farm in two shades and the plaintiffs are managing the affairs of the poultry farm. However, defendant Kaniz Jehra along with defendant no.2 and 3 namely Asim Aslam and Ehsan Ayub wants to possess the poultry farm with the intention to oust the plaintiffs and to interfere in the business of poultry farming as also in the shifting of the birds. Thus, the decree of perpetual injunction was prayed to the tune that the defendants be restrained from making any interference in the shifting of 28,000 birds kept in the poultry farm and also from making any interference in doing the business of poultry farming by the plaintiffs. 7. The plaintiffs along with the plaint has filed photostat copies of the bill dated 03.04.2021, 08.05.2021, 09.05.2021 and 07.05.2021 issued by the Whitehen Private Ltd. as well as various applications moved by the plaintiffs as well as the wife of Shadab Hasnain Zaidi namely Saima Zaidi before various police authorities as well as bank account statements pertaining to Shadab Hasnain Zaidi and Syed Mohd. Javed Naqvi. 8. The court below by passing impugned order dated 10.12.2021 has restrained the impugned order restraining the defendants/appellants from making any interference in the shifting of birds or from carrying the business of the poultry farm till the next date of listing and the next date was fixed as 24.12.2021. Aggrieved by the same defendants-appellants has filed the instant appeal challenging the impugned order dated 10.12.2021. 9. Shri Gaurav Mehrotra, learned counsel for the appellants vehemently submits that the court below has passed the impugned order in utter disregard to the settled principles governing the issuance of temporary ad interim injunction and without recording any justifiable reason has issued the blanket injunction in favour of the plaintiffs. 10. 9. Shri Gaurav Mehrotra, learned counsel for the appellants vehemently submits that the court below has passed the impugned order in utter disregard to the settled principles governing the issuance of temporary ad interim injunction and without recording any justifiable reason has issued the blanket injunction in favour of the plaintiffs. 10. He further submits that the subordinate court in the guise of interim relief has granted the final relief prayed for by the plaintiffs in the plaint and the subordinate court has not considered this aspect of the matter that the suit has been filed by the plaintiffs only for the relief of permanent injunction, which is not maintainable without there being any relief for declaration of the interest or rights of the plaintiffs. It is also submitted that plaintiff no.2 has instituted the suit through his attorney namely Smt. Saima Zaidi and the document which is being termed as the ‘power of attorney’ (placed at Page No. 140 of the paper book) could not be regarded as the ‘power of attorney’ and, therefore, the suit was itself not maintainable. 11. It is also vehemently submitted that the court below has taken cognizance of the photocopies of certain documents in consideration for the purpose of granting ad interim injunction in favour of the plaintiffs and as per the settled law, the photostat copies of the documents could not have been taken into consideration without there being any explanation pertaining to the loss of original documents. 12. It is further submitted that the basis of showing the interest of the plaintiffs in the firm is the bank account statements, which have been filed along with the plaint, pertaining to the plaintiffs of their Bank accounts in S.B.I. and Axis Bank, however, only some of the favourable entries are shown in these bank statements, while the major portion of those bank account statements have been blurred and, thus, these documents appear to be devoid of any substance. 13. 13. It is also stated that there is a specific provision in the partnership deed contained in Clause 19, which says that no other person shall be introduced as a partner into the firm without the consent in writing of all the existing partners of the firm and there is no written document available on record, which may show that the plaintiffs were inducted in the S.K.C. Eggs firm or in the business of poultry farming by the existing partners. 14. It is also vehemently submitted that having regard to Section 38 and 41 of the Specific Relief Act, 1963, the injunction could not have been issued, without there being any evidence that the poultry farm is being managed by the plaintiffs. 15. Learned counsel for the appellants in support of his contention has relied on following case laws:- “(i) ‘Zila Parishad, Badaun and others vs. Brahma Rishi Sharma’ reported in AIR 1970 All 376 (FB), (ii) Anathula Sudhakar vs. P. Buchi Reddy (dead) by LRS. And others (2008) 4 SCC 594 , (iii) Ramji Rai and another vs. Jagdish Mallah and another, (2007) 14 SCC 200 , (iv) Order dated 30.05.2019 passed in Second Appeal No. 315 of 2011 (Nand Lal and others vs. Ram Avtar), (v) Jagdish vs. Rajendra reported in AIR 1975 All 395 , (vi) Raja Khan vs. Uttar Pradesh Sunni Central Waqf Board and another, (2011) 2 SCC 741 , (vii) State of U.P. and others vs. Ram Sukhi Devi, (2005) 9 SCC 733 , (viii) Samay Singh vs. M/s Hindustan Petroleum Corporation Ltd., 2012 SCC OnLine All 1253, (ix) Prabhjot Singh Mand and others vs. Bhagwant Singh and others, (2009) 9 SCC 435 , (x) Zenit Mataplast Private Limited vs. State of Maharashtra and others, (2009) 10 SCC 388 .” 16. Learned counsel for the respondent while opposing the submissions made by learned counsel for the appellants submits that at the stage of issuance of temporary injunction, the Court has to keep into consideration the prima facie case, balance of convenience as well as the possibility of irreparable loss and having regard to the settled parameters pertaining to the issuance of interim injunction, no infirmity or to say that any irregularity has been committed by the subordinate court. 17. 17. It is further submitted that keeping in view the provisions contained under Order XLIII Rule 1 (r) of Code of Civil Procedure, the appeal preferred by the appellants is not maintainable. 18. It is further submitted that the appellants-defendants have already appeared before the court below and have also filed their objections and date 04.01.2022 has been fixed for disposal of the temporary injunction application as well as the objections filed by the instant appellants/defendants and, therefore, the correct course available to the appellants was to pursue their objections in the subordinate court and keeping in view the provision contained under Order XXXIX Rule 4 Code of Civil Procedure, the appeal is not maintainable, as the order of ad interim injunction may be discharged, varied or set-aside. Therefore, there was no occasion for the defendants-appellants to have approached this Court when in pursuance of the objections filed by the appellants, the subordinate court has already fixed a date for the disposal of the interim injunction application. 19. It is also submitted that about Rs.44,00,000/- have been invested by the plaintiffs/respondents in the firm and defendants-appellants wants to misappropriate the investment made by the plaintiffs and, therefore, if the injunction order granted by the court below is modified or cancelled, the same shall result in irreparable loss to the respondents and thus, having regard to all the facts and circumstances of the case, the appeal is liable to be dismissed with costs. 20. Having heard learned counsel for the parties and having perused the record, so far as the first contention of learned counsel for the respondents pertaining to the maintainability of the instant appeal, in view of the Order XLIII Rule 1 (r) of C.P.C. is concerned, the issue has not remained res integra as the same has been set at rest by the Full Bench decision of this Court passed in ‘Zila Parishad, Badaun and others vs. Brahma Rishi Sharma’ reported in 1969 SCC OnLine All 237 : 1970 All LJ 5 (FB) : AIR 1970 All 376 (FB), wherein the Hon’ble Full Bench has opined as under:- “The language and the object of Rule 1(r) of Order 43 and the scheme ot Rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte order of injunction. As soon as an interim injunction is issued and the party affected thereby is apprised of it, he has two remedies: (1) he can either get the ex parte injunction order discharged or varied or set aside under Rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided for under Order 43, Rule 1 (r), or (2) straightway file an appeal under Order 43, Rule 1 (r) against the injunction order passed under Rules 1 and 2 of Order 39. C.P.C. It is not unusual to provide for alternative remedies. For instance, when an ex parte decree is passed against a person, he has two remedies: either he may go up in appeal against the ex parte decree or he may seek to get the ex parte decree set aside by the same court.” 21. Thus, having regard to the law laid down by the Full Bench of this Court, the appeal is maintainable. 22. Perusal of the record would further reveal that a partnership deed has been brought on record which is stated to have been executed between the Late Asif Hamid and Mr. Asim Aslam pertaining to the establishment of M/s S.K.C. Eggs firm and the above-mentioned two persons were having share of 50 percent each in this firm. Perusal of this partnership deed would also reveal that there is a clause (Clause-19) in the partnership deed which says that without written permission/consent of the existing partners no new partner shall be inducted in the partnership firm. 23. It is an admitted fact that the poultry farm wherein the birds are kept is existing at Gata No. 319, area 1.2360 Hectare situated at Village Makhdumpur Sirsaipur, Pargana Kursi, Tehsil Fatehpur, District Barabanki. A photocopy of the sale deed dated 09.07.2018 has also been brought on record, which reveals that Gata No. 319 bounded as shown in the plaint, has been purchased by Asif Hamid and Ehsan Ayub from one Darshan. Thus, the poultry farm, primafacie, appears to be situated on the land owned by the deceased Asif Hamid (Husband of Kaniz Zehra) and Ehsan Ayub. 24. It is admitted by plaintiffs/appellants in Para No.2 of the plaint that appellant/defendant Kaneez Zehra (wife of the deceased Asif Hamid) is a partner in the M/s S.K.C. Eggs firm and she is having all the rights and liabilities of the firm with her. 24. It is admitted by plaintiffs/appellants in Para No.2 of the plaint that appellant/defendant Kaneez Zehra (wife of the deceased Asif Hamid) is a partner in the M/s S.K.C. Eggs firm and she is having all the rights and liabilities of the firm with her. It is also alleged in the plaint that the plaintiffs have invested in S.K.C. Eggs firm on the assurance of deceased Asif Hamid, as he was not having sufficient funds and asked plaintiffs to invest money in his partnership firm and the plaintiffs by transferring money to the S.K.C. Eggs firm on various dates and also by paying to Whitehen Private Limited have invested huge amount in the partnership firm. Photocopies of some bills issued by Whitehen Private Limited, which are in the name of the plaintiffs have also been brought on record. However, none of these bills are in the name of S.K.C. Eggs firms. An amount of Rs.44,20,000/- is claimed by the plaintiffs to have been invested in the S.K.C. Eggs firms, however, the same is not tallying with the bank account statement filed by the plaintiffs. It is also claimed in the plaint that now the poultry farm is being managed by the plaintiffs, however, there is no evidence or material available on record to fortify this claim of the plaintiffs. Thus, at this stage, there are claims and counter-claims and the same could only be proved during the course of trial by producing acceptable evidence by the parties. But, at this stage, It could not be clearly inferred from the evidence/material brought on record, that the poultry farm is being managed solely by the plaintiffs, moreso, when the same is admittedly established/constructed on the land owned by the husband of defendant/appellants. Thus, at this stage from the material which was available before the trial court, it was not possible to infer that the plaintiffs were alone managing the affairs of the poultry farm. Defendant/appellant Kaneez Zehra admittedly is a partner in the S.K.C. Eggs firm. Thus, from the material/evidence which was made available before the trial court by the plaintiffs, it could only be perceived that there is a dispute between the partners of the firm, however, the factum of partnership is still to be proved by the plaintiffs. Defendant/appellant Kaneez Zehra admittedly is a partner in the S.K.C. Eggs firm. Thus, from the material/evidence which was made available before the trial court by the plaintiffs, it could only be perceived that there is a dispute between the partners of the firm, however, the factum of partnership is still to be proved by the plaintiffs. Thus, in the background of all the facts and circumstance of the case, the case of the plaintiffs was not of such a nature, on the basis of which a blanket injunction restraining the defendant Kaneez Zehra (partner of the firm and is also the co-owner of the land, whereon the poultry farm is situated) should have been issued, that too to such an extent that plaintiffs were given the authority to even shift 28,000 birds allegedly kept in the poultry farm. It is to be understood that one of the object of issuing ad interim ex parte injunction is also to preserve and protect the corpus or property for which the parties are litigating. 25. Having regard to all the facts and circumstances of the case, in the considered opinion of this Court, it is an admitted fact that the objections have already been filed by the defendant-appellants before the trial court with regard to the interim injunction application of the plaintiffs and date 04.01.2022 was also fixed for disposal of interim injunction application. Keeping in view Order XXXIX Rule 4 C.P.C., the order of ad interim injunction could be discharged, varied or set-aside by the trial court and this has also been recorded by the trial court in the impugned order. Therefore, without recording any finding on the merits of the case, as the same may effect the decision of the trial court, it would be in the interest of justice, if parties are directed to get their lis decided by the trial court. 26. In view of the reasons mentioned above, it is provided that the trial court shall fix a date not beyond 20 days from production of a copy of this order before it, for disposal of application for temporary injunction moved by the plaintiffs in the aforementioned suit and will dispose of the same after providing an opportunity of being heard to the parties, within a reasonable time thereafter, without granting easy adjournments to either party. 27. 27. It is also provided that till the disposal of application for temporary injunction by the trial court, none of the party to the lis, shall shift, transfer any bird (s) from the poultry farm and they will maintain status quo on the poultry farm, as on today. However, the parties, with the previous permission of the trial court may do necessary work required for upbringing/safety and care of the birds. The trial court shall also explore the possibility to settle the dispute between the parties through the mode of mediation. 28. In the peculiar facts and circumstance of the case, no order is made with regard to costs. 29. The appeal is finally disposed off in terms mentioned herein-above.