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Akmal Ali and ors. Etc. Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Reference Nos. 2 and 3 of 1983
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rules 1, 2, 2A, 4 and 10 - Order 43, Rule 1
AppellantAkmal Ali and ors. Etc.
RespondentState of Assam and ors.
Appellant AdvocateB.K. Das, A.B. Choudhury and B. Banerjee, Advs.
Respondent AdvocateP. Prasad, Adv. and Govt. Adv.
Prior history
Lahiri, J.
1. One of us (Hansaria, J.) sitting singly posed the question whereupon this Bench has been constituted to answer the same :
'Whether are appeal lies under Order 43,
Rule 1 (r) of the Civil P. C., 1906, against
an ex parte order of ad interim injunction?'
2. In our opinion, the answer sought is very much there in the question itself. If an order of ad interim injunction is passed under Order 39, Rule 1 or 2 of the Civil P. C., whether ex parte or otherwise, it is appealable, as
Excerpt:
.....an order passed under rule 4 of order 39. we have given reasons why ex parte as well as inter parte orders rendered under rules 1, 2, 2-a and 4 are appealable. we have also stated our reasons why an order rendered under rules 1, 2, 2-a and 4 is to be treated as 'order',contemplated in rule 1 (r) of order 43. for the reasons set forth, we could not pursuade ourselves, notwithstanding our best efforts, to accept the view of the hon'ble madras high court, we requested learned advocates general of nagaland, meghalaya and tripura as well as the president of the high court bar association and other learned members of the bar and they expressed that the law laid down by this court in united club (air 1964 assam 81) (supra) should be followed as it has become the law of the land following..........an order passed under rule 4 of order 39. we have given reasons why ex parte as well as inter parte orders rendered under rules 1, 2, 2-a and 4 are appealable. we have also stated our reasons why an order rendered under rules 1, 2, 2-a and 4 is to be treated as 'order', contemplated in rule 1 (r) of order 43. for the reasons set forth, we could not pursuade ourselves, notwithstanding our best efforts, to accept the view of the hon'ble madras high court, we requested learned advocates general of nagaland, meghalaya and tripura as well as the president of the high court bar association and other learned members of the bar and they expressed that the law laid down by this court in united club (air 1964 assam 81) (supra) should be followed as it has become the law of the land following.....
Judgment:

Lahiri, J.

1. One of us (Hansaria, J.) sitting singly posed the question whereupon this Bench has been constituted to answer the same :

'Whether are appeal lies under Order 43,

Rule 1 (r) of the Civil P. C., 1906, against

an ex parte order of ad interim injunction?'

2. In our opinion, the answer sought is very much there in the question itself. If an order of ad interim injunction is passed under Order 39, Rule 1 or 2 of the Civil P. C., whether ex parte or otherwise, it is appealable, as Order 43, Rule 1 (r) enables a party aggrieved by any order under Order 39, Rule 1 or 2 to prefer an appeal. However, the question requires further consideration as although this High Court has persistently and consistently held, since its inception, that an appeal does lie against an enter of ad interim injunction if rendered under Order 39, Rule 1 or 2 and the rule was confirmed by Mehrotra, C. J. in United Club v. Nowgong Foot Ball Association AIR 1964 Assam 81. This court permits appeal against any order made under Order 39; Rule 1 or 2, ex parte, speaking or non-speaking. However, the opposite view has been expressed by some High Courts and hence the reference.

3. To resolve the question it is necessary to set out the provisions of Order 43, Rule 1 (r) of the Code :

'1. Appeals from orders -- An appeal shall He from the following orders under the provisions of Section 104 namely:--

(a) ** ** **

(r) an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order XXXIX.'

On a plain reading of the provision it appears obvious that all orders rendered under 'Rule 1, Rule 2, Rule 2-A, Rule 4 and Rule 10 of Order 39' are appealable. It is evident that any other restraint order passed under any other provision, though falling in Order 39, is not appealable as Order 43, Rule 1 (r) permits an appeal against specific orders referred in Order 43, Rule 1 (r). Order 39 has been compartmentalised into two divisions : (1) temporary injunction, and (2) interlocutory orders. Rules 1 and 5 fall, under the head 'temporary injunction', whereas Rules 6 to 10 fall under interlocutory orders. It is thus seen that all orders under Rules 1 to 5 of Order 39 are nothing but order of ''temporary injunction'. We lay emphasis that Order 39, Rule 4 is also an enabling provision to grant temporary injunction like Order 39, Rules 1 and 2. Amongst the 'interlocutory orders' only an order passed under Rule 10 of Order 39 is appealable in spite of the fact that it is an 'interlocutory order'. The expression 'interlocutory' means provisional, interim or temporary, but not final. Similarly the term 'temporary' in the expressions 'temporary injunction' means provisional and interim, and, therefore orders of temporary injunction cannot by their very nature be final. Notwithstanding the characteristics of 'interim', 'provisional' or 'temporary' nature of the orders, they have been expressly made appealable, if they are parsed under Rules 1, 2, 2-A, 4 and 10. In our opinion, therefore, the court cannot refuse to entertain an appeal only on the ground that such orders are temporary or interim or provisional. Similarly, by their very nature ad interim injunctions passed under Order 1 or 2 are always rendered ex parte. Parliament being fully aware of the situation permitted appeals against such orders. In our opinion,, therefore, an ex parte order of temporary injunction, whether provisional, temporary or interim are appealable, if rendered under Order 39, Rules 1 and 2. On perusal of Order 43, Rule 1 (r), we notice that it speaks that an appeal shall He from an 'order' under Rule 1, Rule 2, Rule 2-A, Rule 4 and Rule 10 of Order 39. Therefore, any order under Rules 1, 2, 2-A and 4 is appealable.

4. Now, let us turn to Order 39, Rules 1, 2, 2-A and 4 to find out the nature and character of the process by which an ad interim injunction is issued, Order 39, Rule 1 states that on fulfilment of the 'conditions precedent the Court may by Order grant a 'temporary injunction', and what is more important, grant the order 'until the disposal of the suit or until further orders'. Thus, ad interim order of temporary injunction is clearly visualised by Rule 1. Similarly Rule 2 provides that 'the Court may by order grant such injunction......' Rule 2-A also provides that the Court 'may order the property of the person guilty of such disobedience......to be attached and may also order such person to be detained...'. Similarly Rule 4 of Order 39 which deals with discharge, variation or cancellation of 'any order for an injunction' recognises the power of the Court to discharge, vary or set aside 'any order of injunction'. Therefore, the power of discharge, vary or set aside can be invoked if there is in existence an 'order for an injunction'. If orders rendered under Rules 1, 2, 2-A are not orders of injunctions the Court cannot exercise power under Order 39, Rule 4. However, in our opinion, all orders rendered under Order 39, Rules 1, 2, 2-A have been designated as 'orders' and Rule 4 empowers the trial Court to discharge, vary or set aside any of such orders. It does not stand to scrutiny that if the order is an ex parte order or it is non-speaking order, it would not be revisable by the trial Court under Order 39, Rule 4 of the Code. Rule 4 empowers the trial Court to vary, alter or cancel any order of injunction, which undoubtedly includes orders under Rules 1, 2, 2-A of Order 39. As such, all orders which are dischargeable variable or cancellable, are appealable under Order 43, Rule 1 (r), because an appeal lies against any order of injunction made under Order 39, Rules 1, 2 and 2-A However, there is a line of decisions in which it has been held that an ex parte or ad. interim order of injunction under Order 39, Rules 1, 2, 2-A is not appealable as it is temporary or ex parte or non-speaking. But in the same breath the High Courts recognise the right of petition against such orders under Order 39, Rule 4 of the Code. An ex parte non-speaking temporary of ad interim order of injunction is revisable but it is not appealable, although the characteristics of the impugned order are absolutely the same both in Order 39, Rule 4 as well as in Order 43, Rule 1 (r), seems to be irreconcilable. If it is an order of injunction, it is appealable as well. Similarly, if it is an order of injunction it is revisable under Order 39, Rule 4. Situated thus, we find it difficult to accept the line of reasoning and respectfully differ from the view. In our opinion, all ex parte ad interim injunction are appealable under Order 43, Rule 1 (r) as well as revisable under Order 39, Rule 4 of the Code.

5. The right of appeal conferred by Order 43, Rule 1 (r) read with Section 104 is a statutory right. The right cannot be restricted when no restriction is found in Section 104 and Order 43, Rule 1 (r). The legislature created an unqualified right of appeal against 'any order' passed under Order 39, Rules 1, 2, 2-A, 4 and 10, whether inter partes or ex parte, by a speaking or non-speaking order. The legislature may provide for two reliefs or alternative reliefs and/or may provide two forums for reliefs. The statutory provisions for obtaining reliefs, both under Order 43, Rule 1 (r) and Order 39, Rule 4, is legislative will. The intention is clear, precise and direct and this should end all judicial speculations. In Shri Mandir Sitaramji v. Lt. Governor of Delhi, AIR 1974 SC 1868 Mathew, J. speaking for the Court observed that the well-established rule of law is that where legislature has spoken, the Judges cannot afford to be wiser. We are, therefore, of the opinion that against an ex parte order of ad interim injunction relief can be obtained under Order 39, Rule 4 as well as under Order 43, Rule 1 (r). When the legislature willed that reliefs may be had in two forums, the Court cannot shut the relief on the plea that if appeals are permitted it would open flood-gate of litigation and create difficulties to the appellate Courts. To deny the right on this score is to defy the legislative mandate, which in ' our opinion, is not permissible. For the same reason we cannot subscribe the view that no appeal lies against an ex parte order of ad interim injunction but an appeal is competent only 'after both the parties are heard and a reasoned order is given by the trial Court under Order 39, Rule 4 of 'the Code'. Such a construction overlooks the provisions of Order 43, Rule 1 (r), which pro-vide for appeal against Order under Rules 1, 2 and 2-A apart from an order under Rule 4. If it were so, the legislature would have surely provided for appeal only against an order under Order 39, Rule 4 and would have omitted Rules 1, 2, 2-A from Rule 1 (r) of Order 43. We cannot hold that the expressions 'R. 1, Rule 2, Rule 2-A' in Order 43, Rule 1 (r) are superfluous or unnecessary and can be omitted or overlooked, in spite of the expressed legislative will.

6. Any controversy as to whether reasons need be recorded while making an ex parte order of ad interim injunction has been removed by the introduction of Rule 3, which provides that the Court after recording reasons for its satisfaction that the object of granting injunction would be defeated by delay etc., may pass an order of ex parte ad interim injunction under Rules 1 and 2 of Order 39. It does not stand to scrutiny that an ad interim ex parte order devoid of reasons, rendered in violation of the well-known principles that a judicial order must contain reasons, and, in violation of the mandatory provision of Rule 3 can escape the jurisdiction of the appellate Court, but the same order can be revised by the very same Court, Judicial order must be reasoned order. After the amendment, it must contain reason. The trial Court must apply its mind to the materials placed before it, and, on being 'satisfied about the requirements of Order 39, Rules 1 and 2 make the Order. Further, Rule 3 enjoins ''reasons to be recorded'. Under these circumstances when the trial Court is required by law to state reasons, but does not furnish them in its order, it violates the provisions of 'the Code'. By its own inaction or intentional violation of the mandatory provisions of the Rules a Court cannot take away the right of appeal of a person aggrieved by that order; As such, an ex parte order of injunction, whether speaking or non-speaking, is appealable.

7. Similarly, the reasoning that an ex parte order of ad interim- injunction is short-lived so it is not appealable cannot be accepted. There is nothing to show or indicate in Section 104 or Order 43, Rule 1 (r) that a short-term injunction is not appealable. We have stated that all such orders passed under Rules 1 to 5, are 'interlocutory orders'. If all such orders are interim or interlocutory orders or short-lived orders, it does not stand to scrutiny how an order rendered under Rule 4 of Order 39 can be appealable. We, therefore, hold that all orders rendered under Rules 1, 2, 2-A and 4 are short-term orders and they have been made appealable expressly by Order 43, Rule 1 (r) of 'the Code'.

8. We hold that against an order of ad interim injunction under Section 151 of the Code is not appealable, as Order 43, Rule 1 (r) is not attracted. Order 43, Rule 1 (r) does not provide for an appeal against any order of injunction made under Section 151 of 'the Code'. We hold that an order made under Order 39, Rules 1, 2 and 4 refusing to grant an ex parte order of ad interim injunction is appealable because Order 43, Rule 1 (r) enables a party to prefer an appeal against 'an order', positive or negative, passed under Rules 1, 2, 2-A and 4 of Order 39. An order refusing an ad interim injunction is a negative order, but falls within the expressions 'an order'. The question is no longer res integra in view of the decisions of the Supreme Court in firm Ishar Das Devi Chand v. Prakash Chand, AIR 1969 SC 938 : (1969) 1 SCC 664 and Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786 : (1981) 4 SCC 8. We hold that refusal to grant an ex parte order of ad interim injuction is appealable under Order 43, Rule 1 (r) of 'the Code'. Further, we hold that no appeal lies against an ex parte order of ad interim injunction if it is rendered under any provision of 'the Code', other than under Rules 1, 2, 2-A, 4 and 10 of Order 39. The view finds support in Keshardeo v. Radha Kishan, AIR 1953 SC 23 : 1953 SCR 136; Chaube Jagdish Prasad v. Ganga Prasad, AIR 1950 SC 492 (para 17). We also hold that an appeal lies against an ex parte order of ad interim injunction passed under Order 39, Rules 1, 2, 2-A and 4, no matter whether it is a short-term or long-term, speaking or non-speaking, ex parte or inter parte.

9. Now, we have but one task left, that is to consider the decisions brought to our notice. We entirely agree with the view expressed by Mehrotra, C. J. in United Club v. Nowgong Football Association, AIR 1964 Assam 81. The law was correctly enunciated and it was correctly held that appeal was competent against an ex parte order of injunction passed under Rules 1 and 2 of Order 39. We respectfully agree with the view expressed by the Orissa High Court in State of Orissa v. Orissa Oil Industries Ltd. AIR 1982 Orissa 245, wherein it has been held that an ex parte ad interim injunction rendered without recording reasons is violative of O. 39, Rule 3 and is illegal and the order is appealable under Order 43, Rule 1 (r). We respectfully agree with the views expressed in E. Mangamma v. A. Muniswamy Naidu, AIR 1983 Andh Pra 128, wherein the High Court has held that such an appeal is competent against an ex parte order of injunction rendered under O. 39, Rule 1. We also respectfully agree with the opinion expressed in Saraju Prasad, AIR 1951 Cal 446 wherein the Calcutta High Court has held that an appeal is competent against an ex parte order of ad interim injunction passed under Rules 1, 2 of Order 39. We respectfully agree with the views expressed in Zilla Parishad v. B. R. Sharma, AIR 1970 All 376 (FB); Raja Ramakaran v. B. Ramalu, AIR 1982 Andh Pra 256; Patel Jasmat Sangaji Padalia v. Gujarat Electricity Board, AIR 1982 Guj 264. We also agree with the opinion expressed in Shaik Jusa v. Ganpat Dagdu, AIR 1976 Bom 222 wherein the High Court has held that an appeal against an ex parte order of ad interim injunction under Order 39, Rules 1, 2 and/or 4 is appealable. We respectfully agree with the view expressed by Karnataka High Court in Parijatha v. Kamalaksha Nayak, AIR 1982 Kant 105 but only to a limited extent. ' We agree to the extent that there cannot be any distinction between a reasoned or a unreasoned order regarding the appeal-ability of such order, and that unreasoned as well as a reasoned order have the same effect, and therefore, must get the same relief. However, we respectfully differ from the view expressed that no appeal lies against 'an ex parte order of injunction', for the reasons alluded. According to us, Order 39, Rule 4 provides an alternative remedy, and not the sole remedy. We agree partly with the opinion expressed in Astral Traders v. Haji Mohammed, AIR 1982 J & K 124 (FB) that every order of ad interim injunction; whether ex parte or otherwise is appealable. However we cannot subscribe to the view expressed therein that means should be adopted to restrict the right of appeal. When a right has been expressly conferred, in our opinion, no means should be adopted to restrict the same. It would amount to imposing conditions which are not warranted by the provisions of the law. In our opinion, in a country, where the Rule of Law prevails, the Courts are under the law. As such, the view that the Court should drive the party to the trial Court to obtain relief under Order 39, Rule 4, in our opinion, cannot be accepted as the correct proposition of law. However, these appeals are against discretionary orders and the appellate court would undoubtedly bear in mind, while entertaining and disposing of an appeal under Order 43, Rule 1 (r), that an alternative relief is available to the appellant in the trial Court itself. It has to be cautious in granting ex parte stay, as the same may cause irreparable loss to the other side. While granting such stay, the Court ought to bear in mind the nature of the order passed, and the likely effect of stay. But, if the order is bad, illegal or void, relief must be given to the aggrieved person; courts cannot shirk responsibilities only on the ground that the relief granted by the legislature would open a flood-gate for litigation entering into the appellate courts, including the High Court. In Abdul Shukoor Sahib v. Umachander, AIR 1976 Mad 350, a Division Bench of the Madras High Court has held that no appeal lies against an ex parte ad interim order of injunction as (i) a specific remedy is available under Order 39, Rule 4, which must be availed by the interdicted party; (ii) that an appeal is competent only against a final and reasoned order which could be obtained in the trial Court under Order 39, Rule 4 and only against such an order an appeal under Order 43, Rule 1 (r) is available; (iii) that an ad interim injunction is, by its very nature, not conclusive and no relief by way of appeal against an inconclusive order is permissible, as such order does not fall within the definition of order under Section 2(14) of 'the Code'; (iv), that an ex parte order is not a decision but just a step-in-aid to a reasoned order which is to be passed after notice and upon hearing both the parties. It is nothing but an order maintaining 'status quo' and, as such, it is a preliminary order. However, the High Court has held that an appeal against an order under Rule 4 of Order 39 is appealable. It appears that the views of the members of the Bar Association were taken and learned counsel exhorted that the established practice of the Madras High Court was not to entertain any appeal against an ex parte order of ad interim injunction, other than an order rendered under Rule 4 of Order 39. We have given our reasons to show that all orders rendered under Rules 1 to 5 are of temporary nature, and, injunction issued thereunder are 'temporary' including an order passed under Rule 4 of Order 39. We have given reasons why ex parte as well as inter parte orders rendered under Rules 1, 2, 2-A and 4 are appealable. We have also stated our reasons why an order rendered under Rules 1, 2, 2-A and 4 is to be treated as 'order', contemplated in Rule 1 (r) of Order 43. For the reasons set forth, we could not pursuade ourselves, notwithstanding our best efforts, to accept the view of the Hon'ble Madras High Court, we requested learned Advocates General of Nagaland, Meghalaya and Tripura as well as the President of the High Court Bar Association and other learned members of the Bar and they expressed that the law laid down by this Court in United Club (AIR 1964 Assam 81) (supra) should be followed as it has become the law of the land Following the principles of adhering to the established practice, we would have held that we should continue to follow the practice to entertain appeal but we have grave doubt whether we can avoid the mandate of law by taking refuge under the expressions 'Gurus curiae est lex curiae', which means that the practice of the Court is the law of the Court. In our humble opinion the practice of the Court cannot override the express provision of law. Order 43 read with Section 104 confer right of appeal, a substantive right, and it cannot be whittled down by taking recourse to the established practice. The practice may have some application in respect of procedural matters as distinct from substantive matters. With utmost respect, we differ from the view expressed by the Madras High Court.

10. As alluded, even an ex parte ad interim order rendered under Rule 1 or 2 of Order 39 is an order falling within the purview of Order 43, Rule 1 (r). Orders rendered under Rules 1 and 2 of Order 39 have been designated as orders appealable under Order 43, Rule 1 (r) and, as such we are not to look at Section 2(9) or Section 2(14) of the Code'. Section 2 of 'the Code' dearly states that the definition should be understood in the manner stated in Section 2 'unless there is anything repugnant in the subject or context'. If there is any repugnancy in Order 43, Rule 1 (r) read with Order 39, Rules 1 and 2, the meaning of the term 'order' should be understood as set out in those provisions and definition need not be resorted to. That apart any order rendered under Order 39, Rule 1 or 2 is a formal expression of the decision arrived at by the Civil Court relating to granting of ad interim injunction. How could a court injunct a party without deciding whether to grant it or not. Form No. 8 of Appendix F to the Civil P. C., 1908, clearly shows the manner in which the formal expression of the decision is required to be made. Further, to say that reasons must find place in an order to be regarded as a decision would land the litigants in great difficulty, as, one word 'Dismissed' would then not be 'Orders'. Such a proposition cannot be accepted. It is a different matter that all orders, interim or final, should contain reasons. But to regard all non-speaking disposals as net even 'orders' of the appropriate authorities would create stalemate, as, such disposals might then become non-appealable or non-revisable, even under the relevant statutory provisions.

11. For the reasons aforesaid, we hold that an appeal lies under Order 43, Rule 1 (r) of 'the Code' against an ex parte order of ad interim injunction passed under Rules 1 and 2 of Order 39. In our opinion this is the answer to the question posed before us.


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