Indradeo Singh vs District Judge

G.P. Mathur, J.—The present writ petition has been filed for quashing of the order dated 17.4.1993 passed by the Incharge District Judge, Gorakhpur by which the Misc. Appeal preferred by Zila Parishad has been admitted and the operation of the injunction order dated 27.3.1993 of the Civil Judge has been stayed.

It appears that the petitioner Indradeo Singh filed a suit for injunction 27.3.1993 restraining Zila Parishad from cancelling the proceedings of auction held in his favour with regard to right to realise Tahbazari in Kushmi-Bazar in the year 1993-94. Alongwith the suit, an injunction application was moved and on the same day, learned Civil Judge passed an interim order restraining Zila Parishad from re-auctioning the market and from interfering in the collection of Tahbazari. The record shows that Zila Parishad filed an application for vacating the ex-parte injunction order on 29.3.1993. Initially 14.4.1993 was fixed for hearing of the injunction application but as a holiday was declared, on 15.4.1993, learned Civil Judge fixed 19.5.1993 for hearing of the injunction application. The Zila Parishad then moved an application on 15.4.1993 itself for fixing an early date for hearing of the application moved by it for vacating ex-parte injunction order. The record of the writ petition does not show that an early date was fixed. Thereafter, Zila Parishad filed an appeal which was admitted and operation of the injunction order dated 27.3.1993 was stayed by the learned District Judge on 17.4.1993 and it is this order which has been impugned in this writ petition.

Sri P.K. Mishra, learned Counsel for the petitioner has submitted that as the defendant Zila Parishad has already filed an application under Order XXXIX, Rule 4 CPC for vacating the injunction order, the appeal preferred by it against the said order was not maintainable and the impugned order the learned District Judge admitting the appeal and staying operation of the injunction order is illegal and without jurisdiction. According to the learned Counsel, a litigant can avail of only one remedy as provided by the CPC namely, either he can file an application under Order XXXIX, Rule 4 CPC or he can prefer an appeal. But he cannot simultaneously pursue both the remedies. In my opinion, the contention raised by learned Counsel has no substance. Order XXXIX of the Code deals with temporary injunction and Rules 1 and 2 give power to the Court to grant a temporary injunction in order to prevent waste or damage or alienation of the property or to prevent the defendant from dispossessing the plaintiff or to restrain the defendant from committing breach of contract or other injury of any kind. Rule 3 provides that the Court shall in all cases, except where it appears that the object of granting injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. Rule 4 provides that an order for injunction may be discharged or varied or set aside by the Court on an application made by any party dissatisfied with such order. Order XLIII, Rule 1(r) provides that an appeal shall lie from an order under Rule 1, Rule 2 and Rule 4 of Order XXXIX, CPC It is, therefore, clear that an appeal is maintainable both against the ex-parte injunction order as well as against an order passed by the Court after hearing the opposite party. The Code has not made any such provision that if a party has moved an application for vacating an ex-parte order, the appeal against the said order would not be maintainable till the decision of the application or till a final order is passed under Rule 4 of Order XXXIX, CPC It is well settled that the appeal is a creation of statute and the right of appeal can be exercised subject to the conditions and in accordance with the procedure provided by the relevant provision which enables the aggrieved party to prefer an appeal. Order XLI, CPC gives detail procedure for filing appeals against original decrees and it also provides the procedure and Indochinese under which interim order can be passed. In some of taxing statutes it is provided that the appeal will not be entertained unless certain amount of tax is deposited. Section 9(1B) of U.P. Sales Tax Act provides that no appeal against the assessment order shall be entertained unless the appellant has deposited the amount of tax admitted by him. There is no such condition under Order XLIII, Rule 1(r), CPC that if an application has been moved under Rule 4 of Order XXXIX, CPC for vacating an ex-parte injunction order and the said application has not been disposed of, the appeal would not be maintainable. In absence of any such specific provision in the rules, it will not be proper to restrict the right of appeal conferred by the statute by holding that the appeal would not be maintainable if the application to vacate the ex-parte order is still pending.

In Zila Parishad, Budaun and Others Vs. Brahma Rishi Sharma, , a Full Bench of this Court has held that an ex-parte order issuing temporary injunction under Order XXXIX, Rules 1 and 2 against the defendants is appealable under Order XLIII, Rule 1(r), CPC It has been held that the language of Rule 1(r) is unhedged and broad, and the Courts should lean in favour of an interpretation which expands rather than shrinks a remedial right. It has been further held that remedial provision is generally construed liberally and Rule 1(r) creates a remedial right of appeal for protection of substantial and substantive rights. In case the contention raised by learned Counsel for the appellant is accepted it will have the effect of restraining the right conferred by the rule rather than expanding it. I am, therefore, clearly of the opinion that the fact that an application to vacate the ex-parte order of injunction is still pending can have no bearing on the right of the aggrieved party to file an appeal and the right of party to approach the higher Court cannot be curtailed in any manner.

Sri Mishra placed reliance upon certain observations made in para 16 of the judgment in the case of Zila Parishad (supra), in support of his contention that a party aggrieved by the ex-parte order of interim injunction can either get the same discharged under Rule 4 or file an appeal under Rule 1(r) of Order XLIII, CPC It is well settled that the language used in a judgment is not to be interpreted in the same manner as a provision of statute and every word used in the judgment is not to be given a literal meaning. Two questions were referred to the Full Bench namely; whether an ex-parte disjunction order is appealable and whether in any such appeal, the appellant can rely on fresh evidence. The question urged in the present appeal was neither involved in the case nor was considered by the Full Bench. It has not been held in the said decision that if an application for vacating ex-parte injunction order is still pending, the appeal preferred by the aggrieved party against the said order is not maintainable. Therefore, this authority does not support the contention raised by learned Counsel for the appellant and on the contrary it lays down in unequivocal terms that the ex-parte order is appealable. Learned Counsel has also referred to three other decisions in support of his submission namely; Astral Traders Vs. Haji Mohammad Shaban Dar and Others, , Patel Jasmat Sangaji Padalia Vs. Gujarat Electricity Board, Baroda and Others, and M/s. Parijatha v. Kanalksha Nayak AIR 1982 Kar. 105. In the first case, it has been held that an appeal is maintainable against an ex-parte order of injunction but it will be more appropriate if the aggrieved party first approaches the trial Court for vacating the order. In the second case also, it has been held that the appeal is maintainable but the Appellate Court will exercise the power cautiously. Therefore, these two cases also lay down that the appeal is maintainable and do not support the petitioner. In the third case; Karnataka High Court has expressly dissented from Full Bench of our Court in the case of Zila Parishad (supra), and has held that no appeal is maintainable against an ex-parte order. Since this decision is directly contrary to the view expressed by Full Bench of our Court, the same cannot be followed by me.

There is another reason for not accepting the contention raised by learned Counsel for the appellant. Instances are not unknown where on account of tactics adopted by one party the application to vacate ex-parte injunction order is not allowed to be heard for a long time. The ex-parte order may be causing serious injury to the other side and if in such a situation the aggrieved party is deprived of his right of appeal, it may have very serious consequences.

For the reasons mentioned above, there is no merit in the present petition which is dismissed summarily.