Case Note & Summary
The petitioners filed two writ petitions challenging the order of the Senior Civil Judge, Jamkhandi, dated 18.01.2018, rejecting their application for temporary injunction in a suit for permanent injunction. The petitioners had filed a suit seeking permanent injunction against the respondents, and during the pendency of the suit, they filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) for temporary injunction. The trial court rejected the application, holding that the petitioners had not made out a prima facie case. The petitioners then filed appeals before the District Judge, which were dismissed as not maintainable on the ground that the order rejecting the application for temporary injunction is not appealable under Order XLIII Rule 1(r) CPC. The petitioners thereafter approached the High Court under Article 227 of the Constitution of India. The High Court examined the provisions of Order XLIII Rule 1(r) CPC, which provides for appeals against orders refusing to grant an injunction. The court noted that the order in question was not a refusal of injunction but a rejection of the application for temporary injunction. The court held that the distinction between 'refusal' and 'rejection' is significant; refusal implies a decision on merits after hearing, while rejection may be at the threshold without full consideration. The court further held that the remedy against such an order is not an appeal but a revision under Section 115 CPC or an application under Section 151 CPC. The High Court dismissed both writ petitions, upholding the order of the District Judge that the appeals were not maintainable. The court also observed that the petitioners could seek appropriate remedies before the trial court or file a revision if so advised.
Headnote
A) Civil Procedure Code - Appealability of Orders - Order XLIII Rule 1(r) CPC - Refusal of Injunction - The court held that an order rejecting an application for temporary injunction under Order XXXIX Rules 1 and 2 CPC does not amount to 'refusal of injunction' under Order XLIII Rule 1(r) CPC and is therefore not appealable. The remedy lies in filing a revision under Section 115 CPC or invoking Section 151 CPC. (Paras 5-8) B) Civil Procedure Code - Temporary Injunction - Order XXXIX Rules 1 and 2 CPC - Rejection vs. Refusal - The court distinguished between rejection of an application for temporary injunction and refusal of injunction, holding that only a final order granting or refusing injunction is appealable, not an order rejecting the application at the threshold. (Paras 5-8)
Issue of Consideration
Whether an order rejecting an application for temporary injunction under Order XXXIX Rules 1 and 2 CPC is appealable under Order XLIII Rule 1(r) CPC.
Final Decision
Both writ petitions are dismissed. The order of the District Judge holding that the appeals are not maintainable is upheld. The petitioners are at liberty to seek appropriate remedies before the trial court or file a revision under Section 115 CPC.
Law Points
- Order XLIII Rule 1(r) CPC
- Order XXXIX Rules 1 and 2 CPC
- Section 151 CPC
- maintainability of appeal against rejection of temporary injunction
- distinction between refusal of injunction and rejection of application for temporary injunction
