Case Note & Summary
The petitioners, Augusto T. D'Souza and Ana D'Souza, filed writ petitions in the High Court of Bombay at Goa challenging an order dated 01/12/2012 passed by the Adhoc District Judge, FTC, Panaji. The impugned order dismissed the issue/point on the maintainability of an appeal filed by the respondent Nos.1 and 2 under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (CPC) against an order dated 13/05/2015 passed under Order XXXIX Rule 1 CPC. The petitioners argued that the order under Order XXXIX Rule 1 was not an order granting or refusing a temporary injunction and therefore not appealable under Order XLIII Rule 1(r) CPC. The respondents contended that the appeal was maintainable as Order XLIII Rule 1(r) CPC expressly includes orders under Order XXXIX Rule 1 CPC. The court analyzed the provisions of Order XLIII Rule 1(r) CPC, which states that an appeal lies from an order under Order XXXIX Rule 1 and Rule 2 CPC. The court held that the language of the provision is clear and unambiguous, and an appeal is maintainable against any order passed under Order XXXIX Rule 1 CPC, regardless of whether it grants or refuses an injunction. The court found no merit in the petitioners' submissions and dismissed all five writ petitions, upholding the order of the Adhoc District Judge. The court also noted that the petitions were devoid of merits and dismissed them with no order as to costs.
Headnote
A) Civil Procedure Code - Appeal - Maintainability - Order XLIII Rule 1(r) CPC - Order XXXIX Rule 1 CPC - The court considered whether an appeal lies under Order XLIII Rule 1(r) CPC against an order passed under Order XXXIX Rule 1 CPC. The petitioners contended that the order under Order XXXIX Rule 1 is not appealable as it is not an order granting or refusing a temporary injunction. The court held that Order XLIII Rule 1(r) CPC expressly provides for an appeal against an order under Order XXXIX Rule 1 CPC, and the appeal was maintainable. The court dismissed the writ petitions challenging the order of the Adhoc District Judge which had rejected the preliminary objection regarding maintainability. (Paras 1-10)
Issue of Consideration
Whether an appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 is maintainable against an order passed under Order XXXIX Rule 1 of the CPC?
Final Decision
The High Court dismissed all five writ petitions, upholding the order of the Adhoc District Judge dated 01/12/2012, and held that the appeal under Order XLIII Rule 1(r) CPC was maintainable against the order under Order XXXIX Rule 1 CPC. No order as to costs.
Law Points
- Maintainability of appeal under Order XLIII Rule 1(r) CPC against order under Order XXXIX Rule 1 CPC
- Interpretation of Order XLIII Rule 1(r) CPC
- Scope of appealable orders under CPC
Case Details
2018 LawText (BOM) (03) 100
Writ Petition No.105 of 2018 with Writ Petition No.106 of 2018, Writ Petition No.107 of 2018, Writ Petition No.108 of 2018, and Writ Petition No.109 of 2018
Shri A.D. Bhobe for petitioners, Shri M. B. D'Costa, Senior Advocate with Ms. K. Betquekar for respondents
Augusto T. D'Souza and Ana D'Souza
Caetan D'Souza (since deceased) through legal representative Ms. Felicia Pinto and others
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Nature of Litigation
Writ petitions challenging the order of the Adhoc District Judge rejecting the preliminary objection regarding maintainability of an appeal under Order XLIII Rule 1(r) CPC against an order under Order XXXIX Rule 1 CPC.
Remedy Sought
The petitioners sought to quash the order dated 01/12/2012 passed by the Adhoc District Judge, FTC, Panaji, which dismissed the issue of maintainability of the appeal filed by the respondents.
Filing Reason
The petitioners contended that the appeal under Order XLIII Rule 1(r) CPC was not maintainable against the order dated 13/05/2015 passed under Order XXXIX Rule 1 CPC.
Previous Decisions
The Adhoc District Judge had dismissed the preliminary objection regarding maintainability of the appeal.
Issues
Whether an appeal under Order XLIII Rule 1(r) CPC is maintainable against an order passed under Order XXXIX Rule 1 CPC?
Submissions/Arguments
Petitioners argued that the order under Order XXXIX Rule 1 was not an order granting or refusing a temporary injunction and therefore not appealable under Order XLIII Rule 1(r) CPC.
Respondents argued that Order XLIII Rule 1(r) CPC expressly provides for an appeal against an order under Order XXXIX Rule 1 CPC, and the appeal was maintainable.
Ratio Decidendi
An appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 is maintainable against an order passed under Order XXXIX Rule 1 CPC, as the language of the provision is clear and unambiguous, and includes any order under that rule.
Judgment Excerpts
This petition takes exception to the Order dated 01/12/2012 passed by the Adhoc District Judge, FTC, Panaji pursuant to which the District Court was pleased to dismiss the issue/point on the maintainability of the appeal filed by the respondent Nos.1 and 2 under Order XLIII Rule 1 (r) C.P.C. against the order dated 13/05/2015 passed by the trial Court under Order XXXIX Rule 1 C.P.C.
Procedural History
The respondents filed an appeal under Order XLIII Rule 1(r) CPC against an order dated 13/05/2015 passed under Order XXXIX Rule 1 CPC. The petitioners raised a preliminary objection regarding maintainability of the appeal. The Adhoc District Judge dismissed the objection by order dated 01/12/2012. The petitioners challenged this order by filing five writ petitions before the High Court of Bombay at Goa.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXXIX Rule 1, Order XLIII Rule 1(r)
