Case Note & Summary
The petitioner, Syed Abdul Rahim, filed a civil suit (RCS No. 22 of 2021) before the Civil Judge, Junior Division, Parali, District Beed, seeking declaratory relief and preventive injunction against his mother (defendant No.1) and two brother-in-laws (defendants No.2 and 3). The petitioner claimed that the suit properties were owned by his father, who transferred them to the mother. Apprehending that the mother would alienate the properties, the petitioner moved an application seeking a direction to the parties to maintain status quo. The trial court declined the request by order dated 16 March 2021. The petitioner challenged this order by filing a writ petition before the Bombay High Court. The High Court observed that the application for status quo was essentially an application under Order XXXIX Rule 1 or 2 of the Code of Civil Procedure, 1908 (CPC). Consequently, the order passed thereon was appealable under Order XLI Rule 1(r) CPC. The Court relied on the decision in Rajendraprasad R. Singh v. Municipal Corpn. Of Gr. Bombay, AIR 2003 Bombay 392, which held that an order declining to grant ex parte ad interim injunction is also an order under Rule 1 or 2 of Order 39 and is appealable. Since an alternative remedy of appeal was available, the High Court dismissed the writ petition as not maintainable, without expressing any opinion on the merits of the case. The petitioner was granted liberty to pursue the remedy of appeal.
Headnote
A) Civil Procedure - Injunction - Maintainability of Writ Petition - Order XXXIX Rule 1 or 2, Order XLI Rule 1(r) Code of Civil Procedure, 1908 - The petitioner challenged the trial court's order declining to grant status quo (ex parte ad interim injunction) by way of a writ petition. The High Court held that such an order is passed under Order XXXIX Rule 1 or 2 CPC and is appealable under Order XLI Rule 1(r) CPC. Relying on Rajendraprasad R. Singh v. Municipal Corpn. Of Gr. Bombay, AIR 2003 Bombay 392, the Court held that an order declining to grant ex parte temporary injunction is also an order under Rule 1 or 2 of Order 39 and is appealable. Therefore, the writ petition was dismissed as not maintainable, leaving the petitioner to avail the alternative remedy of appeal. (Paras 2-3)
Issue of Consideration
Whether a writ petition is maintainable against an order declining to grant status quo (ex parte ad interim injunction) when an appeal lies under Order XLI Rule 1(r) of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the writ petition as not maintainable, holding that the order declining status quo is an order under Order XXXIX Rule 1 or 2 CPC and is appealable under Order XLI Rule 1(r) CPC. The petitioner was granted liberty to pursue the remedy of appeal.
Law Points
- Order XXXIX Rule 1 or 2 CPC
- Order XLI Rule 1(r) CPC
- maintainability of writ petition
- alternative remedy of appeal
