1. This appeal has been filed by the defendant against whom an order of ad-interim injunction has been passed.
2. A preliminary objection was raised by thelearned counsel for the respondent to the maintainability of the appeal. He argued that an order passed under Rule 3 of Order 39 Civil Procedure Code is not appealable under Clause (r) of Rule 1 of Order 43 Civil Procedure Code. I find that this question was considered by a Division Bench of the Calcutta High Court in Sarajuprasadsingh v. Gangaprosad, AIR 1951 Cal 446. It was observed therein by Roxburg, J., that such an argument confused the temporary and limited nature of the injunction with the question of the finality of the order itself. Whether an order of injunction is to operate only till cause is shown by the opposite party against it or it is to continue to remain in force till the disposal of the suit itself, it is nonetheless an order of temporary injunction within themeaning of Rule 1 or 2 of Order 39 Civil Procedure Code. Such an order would be appealable under Order 43 (1) (r) of the Code of Civil Procedure.
The same view was taken by the Allahabad High Court in the case of L. D. Meston School Society v. Kashi Nath, AIR 1951 All 558. I have not been referred to any decision to the contrary. I am myself of the opinion that Rule 3 of Order 39 Civil Procedure Code merely lays down a rule of procedure to be followed while issuing temporary injunctions. It lays down that the Court should not, except where it appears that the object of granting the injunction would be defeated by the delay, issue an order of injunction--without giving notice to the opposite party to show cause why it should not be issued. An injunction without previous notice to the party affected thereby is a deviation from the ordinary course of justice and should not issue without strong and grave reasons. (See Baddam v. Dhunput Singh : 1 Cal WN 429). But where an order of temporary injunction is issued ex parte that order is nonetheless an order under Rule (1) or (2) of Order 39 Civil Procedure Code and would as such be appealable. It is no doubt unusual for an ad-interim injunction to be the subject-matter of an appeal for the obvious reason that the normal course is to appear before the Court issuing the injunction and to show cause against the continuance of the temporary injunction during the pendency of the suit. If the party showing cause is successful no occasion arises for it to come up in appeal; but if it is unsuccessful an appeal against the final order will lie. Where, however, an appeal against an ad-interim order has been filed the appellate Court will not be bound to apply its mind to all those matters which the original Court is bound to consider on cause shown by the party affected by ad-interim order. To do so would amount to holding proceedings pursuant to the reply to the show cause notice in the appellate Court. I do not feel inclined in this case to go into the merits of the various questions to which the trial Court will be bound to apply its mind before arriving at a decision whether the order of temporary injunction should continue during the pendency of the suit. Suffice it to say that the trial Court is bound to consider whether (1) the plaintiff has a prima facie case, (2) the balance of inconvenience in the event of injunction not being granted lies on his side and whether substantial or irreparable loss such as cannot be easily estimated in terms of money is likely to be caused if the injunction prayed for were not granted. The trial Court has then to consider against what property the order of injunction should be issued. Merely because a suit has been filed involving considerable properties would not justify an injunction restraining the defendant by a sweeping order from making use of all those properties. Such an order is likely to result in grave hardship to the party affected thereby.
3. With these observations I need refer only to one matter which calls for interference at this stage. The agreement between the parties in this case would itself show that a steam-engine and 14 'charkhis' were installed by the defendant. I for one fail to see how he can be restrained frommaking use of these properties in such manner as he likes. I shall, therefore, order that the order of ad-interim injunction issued by the trial Court shall not apply to these two properties.
4. With regard to the ginning factory and the 'dal' mills the trial Court should make a careful inquiry as to whether the plaintiff is prima facie the owner of these two items of property. If the matter calls for a detailed inquiry the trial Court would be well-advised in vacating its order of injunction in so far as it concerns these two properties also. As for the Blackstone and Ruston engines which the plaintiff supplied to the concern the order of ad-interim injunction issued by the trial Court appears to me to be un-exceptionable. Whether or not the order should be confirmed in this regard on cause being shown, I would, for obvious reasons, leave to the trial Court itself to decide.
5. The result is that this appeal is partly allowed. The order passed by the trial Court is modified to the extent that it shall not apply to the steam-engine and 14-'charkhis' belonging to the present appellant. There shall be no order as to costs.