Case Note & Summary
This matter came before a Division Bench as a reference made by a learned Single Judge of the High Court who doubted the correctness of earlier single judge decisions holding that an order of interim injunction passed in a regular civil appeal is appealable under Order 43 Rule 1(r) CPC. The original suit was for injunction concerning possession of property, which was dismissed by the trial court. The plaintiff appealed, and the first appellate court granted interim injunction in his favour. The defendants challenged that order by filing an Appeal from Order in the High Court. The Single Judge, by order dated 6 February 2018, held that the appeal was not maintainable and, disagreeing with earlier views, referred the question to a larger bench. The Acting Chief Justice assigned the reference to a Division Bench. The court appointed an amicus curiae and heard submissions from all sides. The amicus curiae and the appellants' counsel argued that the appeal is maintainable because Section 107(2) CPC gives the appellate court the same powers as a trial court, including under Order 39, and that the bar on further appeals in Section 104(2) CPC applies only to orders passed in appeals from orders under Section 104(1), not to interim orders in regular appeals. They relied on various authorities. The arguments on behalf of the respondent were not detailed in the available text. The judgment text provided is truncated and does not contain the court's final decision on the reference.
Issue of Consideration
Whether the order of interim injunction passed in Regular Civil Appeal filed under Order 41 of the CPC is appealable under Order 43 Rule (1) sub-rule (r) of the CPC?
Case Details
2018 LawText (BOM) (09) 44
Appeal from Order (St.) No. 36523 of 2017 with Civil Application (St.) No. 36526 of 2017 and Civil Application (St.) No. 5023 of 2018
Abhay S. Oka, Riyaz I. Chagla
Amit Borkar (Amicus Curiae), Manmath Sadashiv Athalye (for Appellants), A.V. Anturkar, Senior Advocate a/w Amol Gatne (for Respondent)
Shivaji Shankar Jadhav and Vasant Shankar Jadhav
Laxman Gajanan Godbole through his Power of Attorney Nikhil Dinkar Pawar
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Nature of Litigation
This is a reference to a Division Bench by a Single Judge regarding the maintainability of an appeal from order against an interim injunction granted in a regular civil appeal. The original suit was for injunction regarding possession of property, which was dismissed; the first appellate court granted interim injunction pending appeal, and the defendants challenged that order in the High Court.
Remedy Sought
The appellants (original defendants) sought to challenge the order of interim injunction passed by the lower appellate court in a regular civil appeal, by filing an Appeal from Order under Order 43 Rule 1(r) CPC. The Single Judge referred the question of whether such an appeal is maintainable to a larger bench.
Filing Reason
The appeal from order was filed because the lower appellate court granted interim injunction to the respondent (original plaintiff) despite the trial court having dismissed the suit. The appellants contended that the lower appellate court lacked power to grant such injunction or that the order was appealable.
Previous Decisions
The trial court dismissed the suit for injunction on 8 October 2010. The lower appellate court (District Judge) allowed the application for interim injunction in Regular Civil Appeal No. 117 of 2013. The learned Single Judge of the High Court, by reference order dated 6 February 2018, held that the Appeal from Order was not maintainable and departed from earlier single judge decisions of this Court, and thus referred the question to a Division Bench.
Issues
Whether the order of interim injunction passed in Regular Civil Appeal filed under Order 41 of the CPC is appealable under Order 43 Rule (1) sub-rule (r) of the CPC?
Submissions/Arguments
The amicus curiae submitted that further appeal lies from an interim injunction passed in an appeal filed against original decree under Section 96 CPC, citing unanimity of High Courts; Section 107(2) CPC empowers appellate court with same powers as trial court, and the bar under Section 104(2) is limited to appeals from orders under Section 104(1).
The appellants' counsel submitted that an appeal is continuation of suit, and the appellate court can grant injunction under Order 39 CPC, from which an appeal lies under Section 104(1) read with Order 43 Rule 1(r) CPC; bar under Section 104(2) does not apply to orders in appeals under Section 96.
The respondent's arguments are not explicitly detailed in the provided text.
Judgment Excerpts
The question framed by the learned Single Judge of this Court reads thus: “ Whether the order of interim injunction passed in Regular Civil Appeal filed under Order 41 of the CPC is appealable under Order 43 Rule (1) subRule (r) of the CPC?”
The learned Single Judge had answered this question in the negative and had held the Appeal from Order to be not maintainable.
Certain very relevant provisions of Section 104 and Order 43 of the CPC were not pointed to the earlier benches and, therefore, those provisions were not at all discussed.
Procedural History
In 1999, Respondent filed Regular Civil Suit No. 351 of 1999 for injunction against Appellants. On 2010-10-08, Trial Court dismissed suit. Appeal filed with delay; delay condoned on 2017-03-17. Lower appellate court allowed application for interim injunction in Regular Civil Appeal No. 117 of 2013. Appellants filed Appeal from Order in High Court. On 2018-02-06, Single Judge passed reference order holding appeal not maintainable and referring question to larger bench. On 2018-02-14, Acting Chief Justice referred to this Division Bench. On 2018-03-22, Amicus curiae appointed. On 2018-04-19, hearing concluded, judgment reserved. Pronounced on 2018-09-17.
Acts & Sections
- Code of Civil Procedure, 1908: Section 94, Section 96, Section 104, Section 107(2), Order 39 Rule 1, Order 39 Rule 2, Order 41, Order 43 Rule 1(r)
