Arijit Banerjee, J@mdashIn this revisional application the petitioners challenge a judgment and order dated 24th April, 2013 passed by the Ld. Additional District Judge, 11th Court at Alipore, District South 24 Parganas in Misc. Appeal No. 200 of 2011 dismissing an appeal against an order dated 21st April, 2011 passed by the Ld. Civil Judge (Junior Division), 1st Court at Alipore, District 24 Parganas South in Title Suit No. 1163 of 2011. By the order dated 21st April, 2011 the Ld. Trial Judge refused to pass an ex parte ad interim order of injunction on an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and directed issuance of notice upon the defendants to show cause as to why the prayer for temporary injunction shall not be allowed. Being aggrieved, the petitioners herein who are the plaintiffs in the suit, preferred Misc. Appeal No. 200 of 2011 before the Ld. Addl. District Judge. By the judgment and order impugned in the present application the Ld. Addl. District Judge held that the appeal was not maintainable.
2. The sole question that arises for consideration by this court is whether an order by which the Lower Court directs issuance of notice to the defendant but declines to grant an ex parte ad interim order is an appealable order.
3. Before discussing the various decisions cited by Ld. Counsel for the parties and decisions considered by the Appellate Court, it would be useful to take note of Order 39 Rules 1, 2 and 3 of the Code of Civil Procedure which provide as follows:--
"O. 39 R. 1. Case in which temporary injunction may be granted.--Where in any suit it is proved by affidavit or otherwise -
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to (defrauding) his creditors,
[(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,]
the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court think fit, until the disposal of the suit or until further orders.
R. 2. Injunction to restrain repetition or continuance of breach.--(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract of injury complained, of, or any breach contract or injury of a like kind arising out of the same contract or relating to the same property or right.
R. 3. Before granting injunction, Court to direct notice to opposite party.--The Court shall in all cases, except where it appears that the object of granting the 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:
[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant -
(a) to deliver to the opposite party, or to send him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with -
(i) a copy of the affidavit filed in support of the application.
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.]"
4. Section 104 of the CPC provides that an appeal shall lie from the orders specified therein and save as otherwise expressly provided in the body of the CPC or by any law for the time being in force, from no other orders. Section 104(1)(i) provides that an appeal shall lie from any order made under the Rules from which an appeal is expressly allowed by the Rules.
5. Order XLIII Rule 1(r) of the CPC provides that an appeal shall lie under the provisions of Section 104 from an order under Rule 1, Rule 2, Rule 2(A), Rule 4 or Rule 10 of Order XXXIX. Thus, an order passed under Order 39 Rule 1 or Rule 2 of the CPC is an appealable order. However, an order passed under Order 39 Rule 3 is not appealable. The question thus boils down to whether the order passed by the Ld. Trial Court in the instant case can be said to be an order under Order 39 Rule 1 or 2, in which case an appeal would lie therefrom or whether such order is an order under Order 39 Rule 3 of the Code of Civil Procedure, in which case, it would not be an appealable order.
6. The Ld. Appellate Court took note of the following decisions while coming to the conclusion that the order in question is not appealable:--
"(A)
"10. It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief.
18. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule."
(B)
(C)
(D)
(E)
(F)
7. Relying on the aforesaid decisions, Ld. Appellate Court held that the order in question is not an appealable order.
8. Appearing on behalf of the revisional petitioner Mr. Protik Prakash Banerji, Ld. Counsel referred to Section 94 of the Code of Civil Procedure which provides that in order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, inter alia, grant a temporary injunction and make such other interlocutory orders as may appear to the court to be just and convenient. He then referred to Order 39 Rules 1 to 4 of the CPC and submitted that refusal to pass an ad interim ex parte order of injunction is also an order under Rules 1 and 2 of Order 39 and not an order under Rule 3 of Order 39 CPC. He contended that power to refuse an order of injunction is inherent in the power to grant injunction. If an order granting injunction is appealable so is an order refusing injunction. For refusing ex parte ad interim injunction it is not obligatory that Rule 3 of Order 39 must be complied with. Hence, it cannot be said that an order refusing ex parte ad interim injunction is an order under Rule 3 of Order 39 of the CPC.
9.
"(i) Order 39 Rules 1 and 2 are the only enabling provisions which authorise the court to pass interim injunction, be it ad interim or temporary.
(ii) Order 39 Rule 3 of the CPC is not an enabling provision which authorises the court to grant injunction at the ad interim stage. The said provision simply deals with the procedure as to how and under what circumstances ad interim order of injunction can be passed without service of notice.
(iii) Rule 3 of Order 39 does not deal with the circumstances under which temporary and/or ad interim injunction can be granted by the court unlike Rules 1 and 2 of Order 39 which specify the purposes for which temporary injunction can be granted. Order 39 Rule 3 simply deals with the procedural part which is required to be followed by a Court in dealing with an application for temporary injunction.
(iv) In short, when service of notice is mandatory before grant of injunction, when service of notice can be dispensed with before grant of injunction and in case of passing ad interim order of injunction by dispensing with the requirement of service of notice upon the opposite party, the steps which are required to be taken by the court as well as by the party applying for injunction have been specified in Order 39 Rule 3 of the Code of Civil Procedure.
(v) Grant of ad interim injunction and/or refusal to grant ad interim injunction comes under the provision of Order 39 Rules 1 and 2 which are the only enabling provisions which authorise the court to pass and/or not to pass temporary and/or ad interim injunction depending upon the facts of a particular case.
(vi) When the Ld. Trial Judge refused to pass an ad interim injunction and directed the plaintiff to serve notice upon the defendant, the refusal to grant ad interim injunction being essentially an order under Order 39 Rules 1 and 2 of the Code of Civil Procedure, is undoubtedly an order appealable under Order 43 Rule 1(r) of the CPC."
10. Mr. Banerji further submitted that finding of the appellate court that it could not dispose of the application which is pending before the Ld. Trial Court nor can grant an interim order as a court of first instance, is erroneous. The appellate court held that such an order granting injunction, even if limited till disposal of the application by the Ld. Trial Court, would be illegal exercise of its powers by the appellate court and the appellate court had no jurisdiction to make such an order. Mr. Banerji submitted that such conclusion of the appellate court is fallacious. Section 107(2) of the CPC provides that 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 the Code of Civil Procedure on courts of original jurisdiction in respect of suits instituted therein.
11. Mr. Banerji submitted that both the findings of the appellate court that the order under challenge is not an appealable order and that the appellate court lacked jurisdiction to pass an order of injunction are grossly erroneous in law and has caused substantial miscarriage of justice to the petitioners. The appellate court had acted with material irregularity in passing the judgment and order challenged in this revisional application and the same should be set aside.
12. Appearing on behalf of the opposite parties, Mr. Anindya Kumar Mitra, Ld. Senior Counsel submitted that the source of power to pass an order of injunction is Section 94 of the CPC. Orders and Rules which formed the first schedule to the body of the CPC are all procedural. They prescribed the circumstances in which such power is to be exercised. He submitted that Order 39 Rules 1 and 2 prescribed the circumstances in which temporary injunction can be granted. Order 39 Rule 3 prescribes the circumstances when ex parte ad interim injunction can be granted. He submitted that it is incorrect to say that the source of power to pass an order of injunction is Order 39 Rules 1 and 2. He submitted that an order whereby an ex parte ad interim injunction is refused and notice is directed to be served on the defendants, is not an order under Order 39 Rules 1 and 2 but an order under Order 39 Rule 3. In this connection, Mr. Mitra relied on the decisions noted by the appellate court in the judgment impugned herein, which have been discussed above.
13. Mr. Mitra also relied on a decision of the Hon''ble Supreme Court in the case of
14. Mr. Mitra then relied on a decision of a Division Bench of this court in the case of
"33. Part IV of the Code of Civil Procedure deals with Supplemental proceedings and Section 94 contained in that part of the Code is the substantive provision of the Code which gives power to a court to grant interim relief principally in order to prevent the ends of justice from being defeated. While subsections (a) and (b) thereof deal with the situations where the relief should be granted only to the plaintiff, the power conferred under the other three sub- sections viz. (c), (d) and (e) can be exercised at the instance of both the plaintiff and the defendant. Correspondingly, Order 38 to Order 40, mentioned in the First Schedule of the Code, are the procedural parts of section 94. Although the provisions contained in Order 38 are intended to benefit the plaintiff alone, Order 39 Rule 1(a) can be availed of by both the plaintiff and the defendant. Similarly the power conferred under Order 40 can be invoked at the instance of both the plaintiff and the defendant. The law is equally settled that even in a case where a particular situation does not come within the purview of Order 39 of the Code, the court, in exercise of its inherent power, can pass such other form of injunction as may be necessary do complete justice between the parties and such power can be invoked also at the instance of the defendant of a suit."
15. Mr. Mitra then submitted that the ex parte ad interim order of injunction dated 29th April, 2011 passed by the appellate court at the time of admitting the appeal, directing the respondents in the appeal to maintain status quo in respect of the suit property, was an unreasoned order and as such not sustainable.
16. Mr. Mitra submitted that the Ld. Appellate Court rightly held that the appeal is not maintainable and no interference with the judgment and order under challenge is warranted. He prayed for dismissal of the instant application.
17. In reply, Mr. Banerji, Ld. Counsel referred to the decision of the Hon''ble Apex Court in the case of A. Venkatasubbiah Naidu (supra) and in particular paragraph 10 of the judgment wherein the Hon''ble Supreme Court has observed that Order 39 Rule 1 of the CPC is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. He submitted that the Supreme Court in the case of Vareed Jacob (supra) did not consider the issue in the case of A. Venkatasubbiah (supra). He further submitted that the question involved in the case of Vareed Jacob (supra) was whether or not an interlocutory order automatically revives if a suit which was dismissed for default is subsequently restored. Thus, the issue in that case was completely different from the issue in the present case. He submitted that a case is an authority for what it decides. In this connection he relied on a decision of the House of Lords in the case of Quinn v. Leathem reported in (1901) AC 405. In this case Earl of Hulsbury L.C. in his judgment observed that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides. It cannot be quoted for a proposition that may seem to follow logically from it. Such mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
18. Mr. Banerji also relied on a decision in the case of
19. The next judgment relied on by Mr. Banerji is in the case of
20. Mr. Banerji then referred to a decision of the Hon''ble Supreme Court in the case of
21. Mr. Banerji then submitted that the power to pass an ex parte ad interim order is inherent in the power to pass an interim order. In this connection he relied on a decision of the Hon''ble Supreme Court in the case of
22. Finally Mr. Banerji submitted that none of the decisions of the Hon''ble Supreme Court cited at the bar clearly pronounce on the appealability or otherwise of an order refusing to grant ex parte ad interim injunction and directing issuance of notice. The judgments of the other High Courts are not binding on this Court. He submitted that this Court should follow the decision of the Ld. Judge of this Court in the court of Fiona Ray (supra). He submitted that judicial decorum and principles of stare decisis, precedent and judicial comity warrant that this court should follow the decision in the case of Fiona Ray (supra).
23. Before going into the question which is before this Court, it may be interesting to trace the origin and genesis of the remedy of injunction.
24. In England, under the old Chancery practice an injunction was a writ, issued by the order and under the seal of a court of equity. It was of two kinds. One was the Writ Remediat. This was issued for a variety of purposes including to stay proceedings in courts of law, in the spiritual courts, the courts of admiralty or in some other court of equity: to restrain the indorsement or negotiation of notes and bills of exchange, sale of land, sailing of ship, transfer of stock, alienation of a specific chattel etc.
25. Under the old procedure followed prior to 1864, the Court of Chancery was the only court which had jurisdiction to restrain the doing of wrongful acts by injunction. The Common Law Procedure Act 1864 (which was subsequently repealed by the Statute Law Revision Act, 1883) empowered the common law courts to grant injunction in particular cases. It also authorised those courts to grant injunctions in patent cases. But until the passing of the Judicature Act of 1873, the remedy of injunction continued to be, with the aforesaid exceptions, a remedy peculiar to the Court of Chancery.
26. By section 16 of the Judicature Act of 1873 the entire jurisdiction of the Court of Chancery was transferred to and stood vested in the High Court of Justice. Section 25(8) of the Judicature Act of 1873 provided that a mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court in all cases in which it appeared to the High Court to be just or convenient that such order should be made and any such order may be made either unconditionally or upon such terms and conditions as the court thinks just and if an injunction is asked for either before, or during, or after the hearing of any matter, to prevent any threatened or apprehended waste or trespass such injunction may be granted if the court shall think fit. Such power together with the jurisdiction formerly exercised by the Court of Chancery in granting injunctions were, by the Judicature Act, 1873 conferred upon all the divisions of the High Court. However, this did not create a new jurisdiction in the sense it did not give the right to an injunction to parties who previously had no legal right, but simply gave to the court when dealing with legal rights which were under its jurisdiction power to grant relief by way of injunction in fit and proper cases.
27. In India, the first statutory provision for grant of injunction was made by Sections 92, 93, 95 and 96 of the Civil Procedure Code, 1859. Section 92 laid down that in any suit in which it shall be shown to the satisfaction of the court that any property which is in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the suit, it shall be lawful for the court to issue an injunction to such party commanding him to refrain from doing the particular act complained of or to give such other orders for the purpose of preventing him from wasting, damaging or alienating the property as to the court may seem fit. Section 93 provided that in any suit for restraining the defendant from the committal of any breach of contract or other injury, and whether the same may be accompanied with any claim for damages or not, it shall be lawful for the plaintiff at any time after the commencement of the suit, and whether before or after judgment, to apply to the court for an injunction to restrain the defendant from the repetition or continuance of the breach of contract and wrongful act complained of or the committal of any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right; and such injunction may be granted by the court on such terms as to the duration of the injunction, keeping an account, giving security or otherwise, as to such court shall seem reasonable and just, and in case of disobedience, such injunction may be enforced by imprisonment in the same manner as a decree for specific performance; provided always, that any order for an injunction may be discharged or varied or set aside by the court on application made thereto by any power dissatisfied with such order. Section 95 provided that before granting injunction, the court may direct reasonable notice to be given to the opposite party. By section 96 provision was made for compensating the defendant for needless and unjustifiable issue of injunction.
28. The Civil procedure Code of 1877, chapter XXXV made more complete provisions for issue of temporary injunctions. The law relating to grant of permanent injunction was contained in the Specific Relief Act of 1877 and in particular Sections 54 and 55 of that Act (presently Sections 38 and 39 of the Act of 1963). Those Sections were understood not to be introducing new principles of law in India, but rather as an attempt to express in general terms the rules acted upon by Courts of Equity in England and long since introduced in the country, not because they were English, but because they were in accordance with equity and conscience. Presently the law relating to injunction in this country is contained, in so far as temporary injunction is concerned, in the Code of Civil Procedure, 1908, and in so far as permanent injunction is concerned, in the Specific Relief Act, 1963. In the instant case we are concerned with temporary injunction only.
29. Section 94 of the CPC provides, inter alia, that in order to prevent the ends of justice from being defeated the court may, if it is so prescribed, inter alia, grant a temporary injunction and in case of disobedience commit a person guilty thereof to the civil prison and/or make such other interlocutory orders as may appear to the court to be just and convenient. Section 94 inescapably refers to Rules 1 and 2 of Order 39 of the CPC which have been set out hereinabove.
30. It may not be proper to say that the court derives its jurisdiction to pass an order of injunction from Section 94. It is too well established that the Court has an inherent power to pass an order of injunction where the facts and circumstances of a case so warrant to do complete justice between the parties. Section 151 of the CPC recognises such inherent power. Section 94 of the CPC expressly recognises the court''s power to issue an order of injunction and Order 39 Rules 1 and 2 indicate the circumstances in which the court may exercise its power to grant temporary injunction. If circumstances which are not covered by Rules 1 and 2 of Order 39, warrant issuance of injunction, the court can still do it in exercise of its inherent jurisdiction.
31. In the case of
32. On a meaningful reading of the Code of Civil Procedure, 1908 and upon careful consideration of the precedents discussed above I am of the view that the body of the Code comprising the Sections confer substantive powers on the Court whereas the Orders and Rules contained in the first schedule to the Code prescribe the manner in which such powers are to be exercised. In certain cases, the Orders and Rules also indicate the circumstances in which the powers under the Sections should be exercised. To this extent, the Sections of the Code are substantive in nature and the Orders and Rules in the First Schedule thereto are procedural in nature.
33. Section 94(c) of the Code empowers the Court to grant a temporary injunction. This, according to me, is the parental source of the Court''s power to grant an order of injunction under the Code. Order 39 Rules 1 and 2 indicate the circumstances in which the court may exercise its power under Section 94 of the Code. These circumstances are by no means exhaustive in the sense that the Court''s power to issue a temporary injunction is not limited to the circumstances prescribed by Rules 1 and 2 of Order 39. In any other facts and circumstances not covered by Rules 1 and 2 of Order 39, if justice do demands, the court can issue a temporary injunction in the exercise of its inherent power. Such power has always inhered in a court of law to be exercised for doing complete justice between the parties. Justice is above all and cannot be thwarted or defeated by technicalities. Section 151 of the Code recognises such inherent power of the Court. Such inherent power of the Court must be recognized as it is impossible to visualize all the circumstances that may arise in future while enacting a law or framing procedural rules. The inherent power is generally exercised to fill up a lacuna in the law and mainly on equitable considerations when the circumstances of a case so warrant.
34. While hearing an application under Order 39 Rules 1 and 2 of the Code, the court exercises its power essentially under Section 94 of the Code. Section 94 is the repository of the court''s power to grant temporary injunction under the Code. With the power to grant injunction, comes power to grant an ex parte injunction. Such power is exercised by the court when it feels that there is such urgency in the matter that the plaintiff will suffer irreparable prejudice or substantial hardship if the court waits to pass an order until after notice is served on the defendant or when the court feels that giving of notice to the defendant before granting temporary injunction might prompt the defendant to commit the very mischief that the plaintiff is apprehending thereby rendering the plaintiff''s application infructuous. No strait jacket formula can be laid down as to when the court should grant an ex parte injunction. To put it briefly, an ex parte injunction will be issued only if it appears to the court that the object of granting the injunction would be defeated by the delay entailed in serving notice on the defendant.
35. However, when the court issues an ex parte injunction, it is required to follow the procedure mentioned in Rule 3 of Order 39. In my view, the provisions of Rule 3 of Order 39 are merely procedural. The court''s power to grant ex parte injunction does not stem from Rule 3 of Order 39. When a court passes or refuses to pass an ex parte order of injunction on an application under Order 39 Rules 1 and 2, the court exercises its power under Section 94 of the Code read with Order 39 Rules 1 and 2. The power of the court to pass an order of injunction, be it ex parte or upon hearing both the parties, is discretionary and in passing such an order or in declining to pass such an order the court exercises such discretion under Section 94 of the Code read with Order 39 Rules 1 and 2 thereof. Just as an ex parte order of temporary injunction may affect the defendant, refusal to pass an ex parte order of temporary injunction may also adversely affect the plaintiff. In both cases rights of the parties are decided one way or the other albeit for a limited period of time.
36. In this connection it may be noted that the Hon''ble Supreme Court in the case of A. Venkatasubbiah Naidu (supra) at paragraph 10 of the judgment observed that Order 39 Rule 1 of the CPC is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, till further orders or till the disposal of the suit.
37. I am in respectful agreement with the decision of this Court in the case of Fiona Ray (supra) that Order 39 Rule 3 is merely procedural and unlike Rules 1 and 2 of Order 39, the same does not deal with the circumstances under which temporary or ad interim injunction may be granted.
38. In the light of the aforesaid I am of the firm opinion that when an order is passed by a court on an application under Order 39 Rules 1 and 2 of the CPC refusing to issue ex parte ad interim injunction and directing service of notice on the defendant, the same is an order passed under Section 94 read with Order 39 Rules 1 and 2 and not under Order 39 Rule 3 thereof. It is also significant that whereas Order 39 Rule 3 requires the court to record reasons justifying issuance of an ex parte injunction, no such requirement for recording reasons is prescribed where the court declines to pass an ex parte order of injunction and simply directs service of notice on the defendant.
39. I am inclined to accept and in agreement with the submissions made by Mr. Banerjee, Ld. Counsel for the petitioners, which I have noted above and which I do not repeat here to avoid undue prolixity.
40. With respect, I am unable to agree with the views of the other High Courts discussed above which have held that an order refusing to pass an ex parte order of injunction and merely directing service of notice on the defendant is one under Order 39 Rule 3 of the CPC.
41. Since I have come to the conclusion that an order refusing grant of ex parte injunction and directing issuance of notice to the defendant is also an order passed in exercise of power under Section 94 read with Section 39 Rules 1 and 2 of the CPC, it follows that such an order is an appealable order as provided in Order 43 Rule 1(r) of the Code. I am of the opinion that a remedial provision in a statute, whether by way of an original proceeding or by way of an appeal should be construed in a liberal and expansive manner rather than in a restrictive way.
42. In view of the aforesaid, I am unable to sustain the judgment and order whereby the appellate court dismissed the petitioner''s appeal on the ground that the order of the Ld. Trial Judge was not an appealable order. According to the view, I have taken the Ld. Trial Court''s order was an order under Order 39 Rules 1 and 2 of the CPC and hence appealable as provided in Order 43 Rule 1(r) of the Code. The further view of the appellate court that it did not have the power to pass ad interim injunction is also erroneous in law. Section 107(2) of the CPC provides that the appellate court shall have the same powers as are conferred by CPC on courts of original jurisdiction.
43. I am of the view that there is a glaring error of law on the face of the judgment and order impugned which if not corrected will cause substantial miscarriage of justice to the petitioners. Accordingly the judgment and order impugned in this revisional application is set aside. The matter is remanded back to the appellate court for deciding the appeal of the petitioners from the Ld. Trial Court''s order on merits as expeditiously as possible and in any event within a period of two months from the date of communication of this order. I have not gone into the merits of the case and the Appellate Court will be free to decide the appeal on merits in accordance with law.
44. CO 2191 of 2013 is accordingly disposed of.
Later: After judgment was delivered, the Learned Counsel for the petitioner prays for stay of operation of the judgment and order. The prayer is considered and refused.
