1. This is a revision field against the order in C. M. P. 37 of 1981 granting interim injunction pending disposal of A. S. No. 22 of 1981 on the file of the Additional District Judge, Chittoor,
2. At the very outset a question arose, whether it is an appeal under O.43 or a revision under Section 115, C. P. C. that lies against an order granting interim injunction under Order 39, Rules 1 and 2, C. P. C.
3. Sri E. Subrahamanyam, the learned counsel for the respondent, submitted that no appeal lies against the instant order ant in this connection he mainly relied on the following authorities:
(i) Chellappan v. K.P. Varughese : AIR1964Ker23
(ii) O.C. Kalahasti v. P.C. M. Chetti : AIR1975Mad3
(iii) Domlu Guno v. Yeshadabai (AIR 1978 Goa 31).
4. Sri V. Raghunath Reddy, the learned counsel for the petitioners, contended that an appeal is maintainable and sought permission of the Court to convert this into an appeal. He submitted that S. 104, C. P. C. makes it clear that it is only an appeal under O.43 (I)(r) that is maintainable against orders made under O. 39, Rr. 1 and 2, C. P. C. This distinction, he submitted, seems to have been missed in the authorities cited.
5. Before I examine the point, it is relevant to note the facts of the present case. In the instant case a suit for permanent injunction was filed. Pending the suit, O. S. No. 381/74, a petition for temporary injunction under O. 39, Rr.1 and 2, C. P. C. was filed. An interim injunction was issued and after hearing both parties, it was made absolute. The appeal preferred by the defendant to the District Court was dismissed. Subsequently the suit came up for trial and was ultimately dismissed n 2-2-1981. Plaintiffs carried the matter in appeal (A.S. No. 22/81) to the District Court and filed C. M. P. 37/81 under O. 39, Rr. 1 and 2, C. P. C. for grant of an injunction. The learned Judge granted the injunction sought for and against those orders the present revision is filed. Now, the point for decision is, whether an appeal lie against this order or only a revision that is maintainable.
6. The facts involved in the above three authorities cites are almost similar. There, pending disposal of suits petitions for temporary injunction were filed. Against orders in injunction petitions appeals were preferred to the District Court. Pending such appeals petitions for grant of temporary injunction were filed. Again, as against the orders made in those temporary injunction petitions by the District Court, appeals were preferred to the High Court. The point that arose before the High Courts was, whether an appeal was maintainable. It is sufficient to note the reasoning given in C. Kalahasti v. P.C.M. Chetti : AIR1975Mad3 which makes a reference to Chellappan v. K.P. Varughese : AIR1964Ker23 . The learned Judge in this connection referred to Ss. 96, 104, 105 and 107 and Orders 39 and 43 of the C. P. C. The learned Judge with reference to the provisions of S. 105, C. P. C. observed:
'Moreover, S. 105 also makes it clear that unless otherwise expressly provided, no appeal shall lie from an order made by a Court in the exercise of its original or appellate jurisdiction. The use of the words 'original or appellate jurisdiction' in S. 105 makes it abundantly clear that the Court can only exercise either original or appellate jurisdiction, but cannot exercise both at one and the same time. Therefore, the contention of Mr. Shanmugham that even though the order in C. M. P. 49/1973 was passed by an appellate Court, the order must nevertheless be construed to be one passed by Sub-Court in the exercise of its original jurisdiction, cannot be countenance, and it is clearly an untenable contention. It is only by virtue of the powers vested in it as an appellate Court that the Additional City Civil Court passed the order in C. M. P. 49 of 1973 and consequently, the order will squarely fall within that class of orders which are contemplated in S. 104(2), C. P. C and which are expressly prohibited from being canvassed in further appeal. The fact that the order was passed in an interlocutory application will not make the order any the less an order passed in appeal.'
7. The learned Judge also referred to the decision in Chellappan v. K.P. Varughese : AIR1964Ker23 where also an identical question as the one before the Madras High Court has arisen. The learned Judge of the Kerala High Court, it is stated (at p. 24):
'. . . . . . . has come to the same conclusion as the one reached by me and has held that the power given to an appellate Court u/s. 107 is only part of its appellate jurisdiction, that it cannot characterised as an original jurisdiction in an appellate Court in interlocutory applications moved in an appeal before it are 'orders passed in an appeal' within the scope of S. 104(2), C. P. C. and cannot, therefore, he appealed against. I am in respectful agreement with the view expressed therein.'
8. The learned Judge further proceeded:
'Section 100, C. P. C. sets out the grounds on which a second appeal can be filed and S. 101, C. P. C. lays down in unambiguous terms that no second appeal shall lie except on the grounds mentioned in S. 100 of the Code. It is thus seen that a litigant is not entitled to file a second appeal as of right or as a matter of course and he is granted the right of a second appeal only if he satisfies the conditions enumerated in S. 100, C. P. C.'
Accordingly, the learned Judge was of the view that the appeal is not maintainable and is clearly barred by S. 104(2) C. P. C. To the same effect are the decisions of the Kerals and Goa High Courts cited above,
9. The facts in the instant case are a little different. Here, the appeal pending before the District Judge is not one filed against the interim orders of the trial Court, but is against the decree and judgment in the main suit. Pending the appeal, an independent petition under O. 39, Rr. 1 and 2 is filed. Therefore, the point for consideration is whether an appeal against the orders in a petition filed afresh under O. 39, Rr. 1 and 2 lies under O. 43 or is precluded u/s. 104(2), C. P. C Neither of he learned counsel could place any authority in this respect before me. Therefore, it became necessary to examine this question independently. To test the proposition, I shall take up a hypothetical case where pending a suit no interim petition was filed, but against the dismissal of the suit appeal is preferred and pending such an appeal an interim petition under O. 39, Rr. 1 and 2 s filed. In such a situation, whether it is an appeal or a revision that lies against the orders passed in that interim petition. In this connection, I shall refer to the relevant provisions that have a bearing on the point. S. 96, C. P. C. provides for appeals from original decrees. S. 104 is in respect of appeals from orders. S. 104 reads as under.
'104.(1) Orders from which appeal lies: An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no others orders;-
XX XX XX XX (i) any order made under rules from which an appeal is expressly allowed by rules:
XX XX XX XX (2) No appeal shall lie from any order passed in appeal under this section.'
Section 105 speaks of other orders and it reads as follows:
'105. Others orders:
(1) Save as otherwise expressly provided, no appeal shall lie from any order made b a Court in the exercise of its original or appellate jurisdiction, but, where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.'
10. Section 107 is with reference to powers of appellate Court and it is as under:
'107. Powers of Appellate Court:
(1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power-
(a) to determine a case finally.
XX XX XX XX (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Court on Courts of original jurisdiction in respect of suits instituted therein.'
Section 107(2) makes it clear that the appellate Court exercises the same powers and performs the same duties as are conferred and imposed by the C. P. C. on Courts of original jurisdiction in respect of the suits. It is not in dispute that the appellate Court entertains applications under O. 39, Rr.1 and 2, C. P. C. for the first time when appeals are pending before it. When an order is passed on such applications, it is very plain that an appeal lies against such an order under O. 43,R.1, C. P. C. O. 43 reads as under:
'Appeals from Order:
1. An appeal shall lie from the following orders under the provisions of Section 104, namely:-
XX XX XX XX (r) an order under R. 1, R. 2, R. 2A, R. 4 or R .10 of 10 of O. XXXIX. x x x '
It also provides for appeals against several orders made under various orders of C. P. C. R. 2 of O. 43 makes it clear that the rules of O.41' shall apply, so far as may be, to appeals from orders. Whatever is the procedure laid down, while dealing with appeals from orders. Whatever is the procedure laid down, while dealing with appeals from orders. Whatever is the procedure laid down, while dealing with appeals O. 41 will be applicable to appeals filed under O. 43, No distinction whatsoever is made under O. 43 as to whether the order is made by the trial or appellate Court. There is a prohibition for filing appeals against orders passed in appeal u/s. 104(2), C. P. C. The relevant provision is already extracted. S. 104 contemplates appeals from orders. Appeals are filed not only against orders made under various sections of the C. P. C. but also against several orders enumerated in O. 43 under various Orders of the C. P. C. O. 39, Rr. 1 and 2 is one of the orders against which an appeal shall lie under O. 43, R. 1 (r) C. P. C. When such an appeal filed against such an order is disposed of, no further appeal lies against such an appellate order u/s. 104(2), C. P. C. Therefore, when for the first time an order is passed under O. 39, Rr. 1 and 2 by trial or appellate Court, an appeal shall certainly lie u/s. 104(1) of the C. P. C. But against such an order in appeal no further appeal shall lie u/s. 104(2). C. P. C.
11. In the instant case pending the appeal preferred against the disposal of the suit, an application under O. 39, Rr. 1 and 2 is field and that application is disposed of for the first time by the appellate Court. This is not a case where against the orders under O.39, Rr.1 and 2 made by the trial Court an appeal is preferred to the District Court and as against the orders of the District Court the matter is carried to this Court. So this does not come under the mischief of S. 104(2), C. P. C., but squarely falls under O. 43, R. 1(r) Accordingly, an appeal shall lie under O. 43, R. 1(r) r/w S. 104(1), C. P. C. The authorities cited, as already noted, are distinguishable since the interlocutory proceedings there started from trial Court, then to the appellate Court and thereafter to the High Court attracting S. 104(2), C. P. C. Those High Courts are right in holding that no a such appeal in those circumstances could be maintained. The case on hand is altogether different in nature and does not attract S. 104(2). Therefore, an appeal does lie and is maintainable in the instant case.
12. In a subsequent case in Ramaswamy v. Chinna Sithammal (AIR 1976 Mad 63) Ramaswamy, J., had to consider a similar point. The facts of the case were: Two appeals were filed in the High Court against order sin two applications, which were filed to restore two appeals, which were dismissed for default. A preliminary objection was raised by the respondents that the appeals were not maintainable and in support of their case they relied upon the decision of Natrajan, J., in C. Kalahasti v. P.C. M. Chetti : AIR1975Mad3 . The learned Judge, Ramaswamy, J., dealing with that point held the view that (at p. 64):-
'Section 104(2) says that no appeal shall lie from any order passed in appeal under the said section. In order to attract sub-sec. (2) the appeal should be one falling u/s. 104. If the appeal is one u/s. 96, and not u/s. 104, sub-sec. (2) of the latter section is not applicable. If S. 104(2) is construed otherwise, that is, as applying to appeals coming u/s. 96, also the position would be anomalous. He further observed that
sub-cls. (t) and (u) of R.1' of O. XLIII provide for appeals against orders passed under one provision or other of O. XLI, which governs appeals coming u/s. 96. The said two sub-clauses cannot possibly refer to any order by a trial court. While cl. (t) relates to an order refusing to re-admit (or to rehear) an appeal (as in the present case) cl. (u) relates to an order of remand made by an appellate curt under Rule 23 of O.XLL These two provisions would become meaningless if sub-sec. (2) of S. 104 is made to apply to appeals u/s. 96. No one can suggest that no appeal lies against an order of remand made under O. XLI, R. 23.
13. The learned Judge distinguished the decision in C. Kalahasti v. P.C.M. Chetti : AIR1975Mad3 , on the facts of the case, by observing:
'If I may say so with respect, he decision of Nagarajan, J., is unexceptionable. As seen above the order which was appealed against, though made under O. XXXIX, R. 1, had been passed in an appeal which itself was one against an appealable order. The appeal before the Court which passed the order questioned before Nagarajan, J. was really one coming u/s. 104 that is, an appeal against an appealable order. But, the observations of the learned Judge are sought to be construed as laying down the law that no appeal lies against an order passed in any appeal even though the order is an appealable one, under one or other of the clauses of O. XLIII, R. 1, C. P. C. The learned Judge could not have possibly meant it so. If the learned Judge has really stated that an order passed even in a regular appeal coming u/s. 96 of the Code is not appealable, it would be purely obiter, for, in the matter before the learned Judge, the order had been passed, not in an appeal coming u/s. 96, but in an appeal coming u/s. 104.'
14. Thus, it is quite evident that in a regular appeal pending before the appellate Court if an order is passed under O. XXXIX, Rr. 1 and 2, or as a matter of fact under any of the orders, then the appeal is maintainable under O. XLIII, R. 1, C. P. C., as all such orders are appealable under O.XLIII.
15. The counsel for the petitioner submitted that he may be permitted to convert this revision petition into an appeal. He is permitted to do so since the revision filed was within the period of limitation.
16. The learned counsel for both the parties having taken me through the records, argued the matter as an appeal elaborately. From the material on record and the elaborate arguments addressed before the Court, the admitted facts in the appeal are:
17. Plaintiff filed the suit for a permanent injunction restraining the defendants from taking water from 'A' schedule well to 'C' schedule lands or to any other lands, except 'B' schedule lands. Along with the suit the plaintiff filed a petition for issue of a temporary injunction. A temporary injunction was granted, which was subsequently made absolute. In the appeal against that order the defendant was unsuccessful. Ultimately the suit of the plaintiff was dismissed. In the appeal filed by the plaintiff, he filed a petition for the issue of a temporary injunction, pending the appeal, after hearing both the parties. Against that order the present revision, which is permitted to be converted into an appeal, is filed.
18. The learned counsel appearing for the defendant-appellant submitted that it is not proper that an injunction should be granted on the ground that there was a temporary injunction granted in favour of the plaintiff pending the suit. That temporary injunction was granted by the trial Court on the basis of convenience. This consideration should not prevail over the fact that the suit of the plaintiff was dismissed, and the finding in the main suit has to be taken into consideration while granting an injunction. Therefore the injunction petition filed in the appeal, preferred against the dismissal of the suit, should be considered bearing in mind the finding of the trial Court that the plaintiff had no possession over the suit well, and the fact that the plaintiff was granted a temporary injunction pending the suit, would have no sanctity.. Unless the finding of the trial court is set aside it holds the field and it must be given credit to. Unless the finding of the trial court is set aside it holds the field and it must be given credit to. Unless the plaintiff is in a position to bring to the notice of the Court some extraordinary circumstances to outweigh the finding of the trial court, that finding has to be given weight. There are no such circumstances pointed out by the learned appellate Judge in his order to out-weigh the finding arrived at by the trial court to grant a temporary injunction pending the appeal. The appellate Court has mainly taken into consideration the fact that there was an injunction pending the suit. The learned appellate Judge observed in his order as under:-
'The Commissioner in his report. Ex. B-5 stated that the water was being taken from the suit well to the disputed lands of 'C' schedule through the sluice of the tank, which was situated between the suit well and disputed lands and channel was also distributed at some places. This clearly shows that the respondents were taking water from the suit well to irrigate the lands in plaint 'C' schedule recently i.e. at the time of filing the suit. As stated above from the date of the filing the suit in the year 1974 till the date of judgment of the lower court on 2-1-1981 the interim injunction granted by the lower court by its order dt. 30-9-1974 was in force against the defendants-respondents and they did not irrigate the 'C' schedule lands with the water from the suit well. I, therefore, hold that the balance of convenience is in favour of granting a temporary injunction restraining the defendants-respondents, their men and agents from taking water from the 'A' schedule well to the 'C' schedule land or any other lands except the 'B' schedule land pending disposal of the above appeal. Accordingly the petition is allowed, but with no costs.'
19. The above narration and the observations of the learned Judge make it very clear that the appellate Judge did not want to disturb the conditions obtaining on that day and for that purpose he has relied upon the report of the Commissioner, which states that the defendant was taking water from the suit well to the suit 'C' schedule lands till the date of filing of the suit. Only when the temporary injunction was granted by the Court the defendants were restrained from taking water from the suit well to the 'C' schedule lands. But for the injunction granted by the trial Court, the defendants could have taken water from the suit well to 'C' schedule lands. The reasoning of the learned Judge is that on account of the temporary injunction granted by the trial Court, which was later confirmed by the appellate Court, for a period from Sept. 1974 to Feb. 1981, i.e., about seven years, the defendant was restrained from taking water from the suit well to his 'C' schedule lands and therefore the balance of convenience is in favour of the plaintiff and the defendant should be further prevented from taking water from the suit well. The learned Judge has not pointed out any merits, except saying that there was an injunction in favour of the plaintiff, for issuing a temporary injunction, even after the suit of the plaintiff was dismissed by the trial court. The balance of convenience of the parties, in my view, should not and could not be decided on the basis of the injunction granted by the court and any party to the suit cannot be permitted to take advantage of the injunction granted by the court. Apart from the injunction, what is the balance of convenience for granting of an injunction, has to be examined by the appellate court. Normally prima facie case, balance of convenience and the irreparable injury that may be caused to the parties, are to be taken into account while granting or refusing a temporary injunction. So far as the prima facie case is concerned, the trial Court has dismissed the plaintiff's suit, holding that the plaintiff has no title to the suit well at all. The learned counsel for the appellant has taken me through the relevant portions of the judgment dealing with the title to the suit well and the right to take water from the well. The learned Judge has written a very extensive order on the point, as to how the defendant had established his title to the suit well and how the plaintiff has failed to establish his title to the suit well. In the face of this order it is quite sufficient to hold that a prima facie case is made out by the appellant-defendant, that the plaintiff has no prima facie title to the suit well.
20. The learned counsel for the respondent-plaintiff Mr. E. Subrahmanyam has pointed out some portions of the judgment with reference to some of the exhibits, which connect the name of the plaintiff in the revenue records, with reference to the suit well in Survey No. 600/3. He particularly pointed out Ext. A-2, A-33, And A-34, which have been referred to by the learned Judge in para 11 of his order and the weight attached by the learned Judge to these documents. After taking into account the overall picture and the oral and documentary evidence placed before him, the learned Judge has given a finding in para 14 of his order as under:-
'In view of the above discussion and on consideration of the documents marked on both sides, it can be concluded that the plaintiff has no share in the suit well and therefore this issue is decided as against plaintiff, so the issue goes in favour of the defendant.'
21. Dealing with issues 2 and 3, which are: Whether the suit well has any definite ayacut (land prepared for cultivation-Ed.), and whether the plaintiff is likely to suffer any injury by the defendant taking water from the suit well to his lands in 'C' schedule respectively, the learned Judge observed as under:-
'In view of the discussion above and the conclusion arrived thereon there is no necessity to discuss these two issues and to arrive at a decision when it is held that the plaintiff has no share in the suit well. The suit well exclusively in its entirety belongs to the defendant. Therefore these two issues are also decided in favour of defendant, which goes against the plaintiff.'
22. So far as the balance of convenience is concerned, the trial Court has held that the suit well exclusively belongs to the defendant. Therefore it is just and proper that the defendant should not be restrained from drawing water to his lands in 'C' schedule from the suit well pending the appeal. That apart the learned counsel for the appellant has pointed out some portions from the report of the Commissioner stating that the plaintiff is not cultivating his land by the water from the suit well. It is stated in para 5 that the lands of the plaintiff in Survey Nos. 600/6 and 600/2 are lying fallow. On the other hand it is stated that the defendants have raised paddy and sugarcane crops in Survey Nos. 600/2, 600/4, 600/5, 577/4 and 585. It is also stated that the plaintiff is irrigating his lands by the water from 'Mittobavi' through pumpset. The suit well is called 'Sattobavi'. Therefore the learned counsel for the appellant submitted that even if the balance of convenience is taken into consideration, as the plaintiff is not irrigating his lands by the water from the suit well, it may not be proper and just that the defendant should be prevented from taking water from the suit well, when he succeeded in the lower court and that too, according to the report of the Commissioner, he was drawing water from the suit well all along till the filing of the suit well all along till the filing of the suit and he was only prevented from taking water by the grant of temporary injunction by the court. Therefore by further grant of a temporary injunction the defendant should not be prevented from taking water from the suit well to his lands in 'C' schedule. It will be a great hardship and he will not be able to raise any crops, to which he is entitle in law, more so when the well exclusively belongs to him, in view of the finding given by the trial court.
23. The learned counsel for the respondent has submitted that the plaintiff is irrigating Ac. 0.75 cents of his land by the water from the suit well. The report submitted by the Commissioner is not only silent but is contrary to the submission of the learned counsel. Whatever it is, in view of the report of the commissioner and in view of the fact that the finding is in favour of the defendant that the suit well exclusively belongs to the defendant and the defendant has been prevented only by the injunction of the court from taking war during the pendency of the suit, it will be improper and unjust, if he is further prevented from taking water by way of an injunction, especially when he succeeded in the trial Court. Therefore I am of the view that in such matters temporary injunction, should not be granted. The appellant Court has absolutely not given any reasons in support of balance of convenience in favour of the plaintiff for granting a temporary injunction, except merely saying that there was an injunction during the pendency of the suit. In my view that cannot be a justification for granting a temporary injunction, that too when the plaintiff failed in the trial Court. The appellate Court has not observed in its order that the finding of the trial Court, with regard to the title to the suit well, prima facie was not satisfactory.
24. In the absence of such observation in the order under appeal and there being no grounds for balance of convenience in favour of the plaintiff, and in view of the absence of any discussion in the order as to the irreparable loss that the plaintiff is going to suffer, granting of any injunction as a matter of course pending the appeal, may not be just and proper. I am of the view that the injunction granted by the appellate Court deserves to be vacated.
25. In the result the appeal is allowed. The order of the learned Addl. District Judge dt 5-5-1981 is set aside and the temporary injunction granted is here by vacated, but in the circumstances, there will be no order as to costs.
The learned counsel for the respondent wanted to mention something after the disposal of the appeal. But not he says that there is nothing to be mentioned. Therefore no further ordered are necessary.