1. This Special Appeal has been preferred against an order of Mr. Justice Mathur by which he vacated an interim injunction which had been issued on an application made by the appellants for the issue of a temporary injunction.
2. The circumstances in which the injunction had been applied for were these. The appellants filed a suit in the court of the Munsif claiming a permanent injunction restraining the defendants of the suit from deporting them out of India. The suit was based on the ground that the appellants were Indian nationals and were entitled to remain in the country. The suit was dismissed by the trial court and the order of dismissal was upheld by the lower appellate court. A second appeal was then filed by the appellants challenging the dismissal of the suit.
After the second appeal had been admitted the appellants made an application, presumably under Order 39 Rule 1 C. P. C. praying for a temporary injunction restraining the respondents from deporting them out of India during the pendency of the appeal. Notice was issued in respect of the application and an interim injunction was issued restraining the respondents from deporting the appellants meanwhile. When the application came up for final disposal after the notice had been served Mr. Justice Mathur vacated the interim order and for all practical purposes rejected the application. It is against that order that the present appeal has been filed under Ch. VIII, Rule 5 of the Rules of Court.
3. The Office has raised two objections. The first is that the order appealed against is not a judgment and is consequently not appealable, The second is that even if the order is deemed to be a judgment a special appeal could not be filed against it in the absence of a declaration granted by Mr. Justice Mathur about the fitness of the case for such an appeal.
4. We have heard learned counsel for the appellants. So far as the first objection is concerned we shall assume without deciding that the order sought to be appealed against is a judgment for the purpose of Rule 5 of Ch. VIII of the Rules of Court. The other objection however appears to be more formidable. The material portion of Rule 5 of Ch, VIII of the Rules of Court is as follows:
''...... an appeal shall lie to the Court from a judgment of one Judge made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the Court, where the Judge who passed the judgment declares that the case is a fit one for appeal.'
From the facts which have been mentioned above it is obvious that the order the subject of the present appeal was passed by Mr. Justice Mathur in the exercise of his appellate jurisdiction by a Court subject to the superintendence of this Court, a jurisdiction which may be briefly described as 'Second Appeal' jurisdiction. The lower appellate court in this case was a court Subject to the superintendence of this Court. It had in exercise of its appellate jurisdiction passed a decree upholding the dismissal of the appellants' suit by the trial Court. It was that decree which was being questioned in this Court in second appeal.
The jurisdiction of this Court which had been invoked by the filing of the second appeal was its appellate jurisdiction. The jurisdiction which Mr. Justice-Mathur was thus exercising while disposing of the application for a temporary injunction was 'second appeal' jurisdiction mentioned in the portion of Rule 5 which we have quoted. That being so even if the order passed by Mr. Justice Mathur amounted to a judgment, an appeal could lie against it only if he declared that the case was a fit one for appeal. In the present case no such declaration has been obtained. In the absence of such a declaration, in our opinion, no appeal is entertainable.
5. It was contended that if the application under Order 39 Rule 1 had been rejected by the trial court the order would have been appealable under Order 43 C. P. C. and learned counsel asked why an order passed by a learned Single Judge of this Court should not be similarly appealable. The simple answer is that Order 43 of the Code is not applicable to orders passed by the High Court.
6. While considering the appeal ability or otherwise of orders passed by the High Court the nature of the jurisdiction in the exercise of which the order was passed must be taken in account. Otherwise serious anomalies are likely to arise. Thus an application for a temporary injunction may be made in connection with an application in Civil Revision. If the final order in the revision itself is not appealable how can an appeal lie against orders passed on a miscellaneous application filed in connection of the revision? Similarly if the order finally disposing of a second appeal is not amenable to a Special Appeal without a declaration of the learned Judge that the case is a fit one for appeal, it is difficult to agree that a miscellaneous order passed in connection with that appeal will be appealable without such a declaration. Reference was made to the Full Bench case of Standard Glass Beads Factory v. Sri Dhar, 1960 Ail LJ 387: (AIR 1960 All 692) in which an order passed by a learned Single Judge granting a temporary injunction was held to be appealable. But in that case the order was not passed in the exercise of Second Appeal jurisdiction,
7. We therefore think that no declaration having been obtained from the learned Single Judge the present appeal is not maintainable and must fail. It is accordingly dismissed.