1. This is an appeal by the Government against an order of injunction passed by the District Judge, Muzaffarabad.
2. Facts briefly are that respondents brought a declaratory suit seeking to set aside an order of the Additional Financial Commissioner. The bone of contention is 388 Kanals of land situate in Mouza Atti which the respondents claim to have brought under cultivation. The Financial Commissioner vide his order dated 13-3-1956 directed the Revenue authorities to sanction mutation in their favour under proclamation No. 38-C of 1944. Fourteen years later this order was set aside by the Additional Financial Commissioner on Review on 18-3-1968 and the Government took proceedings to eject the respondents. It was under these circumstances that the plaintiffs brought their suit.
3. On 17-6-1968 the District Judge issued an ad interim injunction restraining the Government from ejecting the plaintiffs and by the same order directed the issue of a notice to the Government to file objections against this application. On 21-11-1968 the District Judge after hearing arguments from both sides confirmed the temporary injunction till the decision of the suit. It is against this order that the Government has come in appeal.
4. Sh. Abdul Haiy, the learned counsel for the respondents, has raised a preliminary objection that the appeal is not competent. He argued that injunctions are issued under rules 1 and 2 whereas they are varied, amended or set aside under rule 4 of Order XXXIX. His contention was that the order issued by the District Judge on 17-6-68 was one passed under rule while the subsequent order of confirmation passed on 21-11-68 was covered neither by rule I nor by rule 4. And in any case, he contended, even if the subsequent order be treated as having been passed under rule 4, it was not appealable because it was not an order contemplated under the rule.
5. The learned counsel for the Government replied that mere issuance of an ad interim injunction under rule 1 does not take away the order of subsequent confirmation from the four-walls of rule 1 which was also therefore appealable.
6. The learned counsel for the respondents relied upon PLD 1957 Lah. 523 and AIR 1929 Mad. 803: I came across another ruling reported as AIR 1940 Nag.
45. Let us first examine these rulings:
(1) In PLD 1957 Lah. 523 Lever Brothers brought a suit against Insaf Soap Factory Sargodha under section 21 of the Trade Marks Act. The District Judge before whom the suit was pending, issued an injunction, after hearing the parties, retraining the defendant from the manufacture of their soap named "New Doctor. The defendants then put in an applica--petition under rule 4 for setting aside of this order of injunction which was rejected. On an appeal to the High Court against the subsequent order the High Court held that the appeal was not competent against the second order. Thus in this case both parties were heard by the trial Court before the issue of injunction and the subsequent application was, therefore; treated as one having been made under rule 4. This case has no application here because in the present case the injunction was issued without hearing the defendants and behind their back. It is clear from the judgment itself of Shabir Ahmad, J. Who did not follow AIR 1933 Lah. 203 and distinguished it on the ground that in this case injunction had been issued without hearing the defendant and therefore the subsequent order rejecting his application for the vacation of the injunction was treated as being one covered by Order LIII, rule 1 (r).
(2) The facts in the Nagpur case were that an injunction was granted ex parte on the 26th of August 1935 and the application to set it aside was made on the 28th of January 1936. This application was dismissed and an appeal against this dismissal was filed in the High Court. The High Court treated the application in the lower Court as being one under rule 4 and held that an order of rejection was also appeal-able under the same rule. The learned Judges, however, gave no reasons for coming to this decision. This ruling was not brought to the notice of Mr. Shabir Ahmed, J. Apparently they seem contradictory but actually there is no conflict between them because in both cases the proposition of law accepted is that in case of an ex parte order of injunction, the order of rejection of an application to set it aside, is appealable. The Nagpur ruling says so explicitly while the Lahore ruling distinguishes the case under appeal on this ground from the ruling cited in support of competency of an appeal. The difficulty, however, is as to whether an objection filed, by the defendant, or an application filed by him immediately after the issue of an interim injunction seeking its vacation or objecting to its confirmation, is one under rule 4 or rule 1 (or 2) as the case may be.
(3) The facts in the Madras case reported as AIR 1929 Mad. 803 are that an application was made on the 30th of June 1928, for a temporary injunction restraining the appellant from executing his decree. A notice was issued to the defendant. After notice the case came up on 10th of September.
7. The defendant did not appear nor did he file any objections and the Court therefore passed an order of injunction. On the 11th September the defendant made an application under rule 4 seeking discharge of the injunction issued against him which was refused. Against this order he went in appeal to the High Court. It was held that the appeal was not competent. This case can also be distinguished from the present appeal in that the injunction was issued after notice to the defendant. The judgment does not say so explicitly but the impression it gives is that the defendant was served but ignored notice. In a sense it may have been treated as not being without notice.
8. The question for determination in connection with the present case is :-- When the Court issues an injunction without notice to defendant and also calls upon him to file his objection against the continuance of the said injunction, whether an order of confirmation passed by such Court after hearing the defendants would be one under rule 4 or 1 of Order XXXIX, C. P. C.?
9. The Courts can issue injunctions under rule 1 and rule 2. Rules 3 and 4 are reproduced below :- "(3) 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.
(4) Any order for an injunction may be discharged or varied or set aside by the Court on application made thereto by any party dissatisfied with such order."
10. Rule 4 does not necessarily cover cases where defendant in obedience to a notice issued by the Court, appears to show cause against it. It is one which is available till the final disposal of the suit.
11. If the injunction is subsequently varied, any party adversely affected may go in appeal and if it is discharged or set aside, the plaintiff has a right of appeal. Again, if an ad interim injunction issued without notice under rule 3 is discharged after cause is shown, the plaintiff can go in appeal but if after notice such an injunction is confirmed, it cannot, it appears to me, be covered by rule 4. It was held in AIR 1940 Nag. 45 by Stone, C. J. And Vivian Bose, J. That refusal to vacate an injunction granted without notice was appealable under rule 4. The learned Judges have given no reasons, whatsoever, for holding this view. With utmost respect for them. I find myself unable to fall in line with their opinion. Rule 4 contemplates only three types of orders. It may be said that the Court may in an application moved under this rule decline to interfere with the order of injunction and it would yet be an order under this rule and hence appealable. But by refusing to vacate an order it has already passed under rule 1 or rule 2, the Court does not pass any fresh adverse order against the defendant. It only says that an interim order already in existence was correctly passed or did not require to be set aside.
12. It was held in A R 1929 Mad. 803:- "We are clear that rule 4 cannot give a Court jurisdiction to interfere with an injunction already passed when each side had an opportunity of being heard and no grounds other than those available at the original hearing appear or are urged When, therefore, a; arty by his own fault neglected to put his case forward at the original hearing, he cannot come forward under rule 4 later anti plead that he has a legal right under that rule to have t lie case reopened and reheard.
13. Rule 4 cannot be read so as to allow a party to let the time for appeal slip by or to wait until his appeal has been dismissed and then to reopen his original case. We are satisfied that rule 4 is not intended to set at naught the -ordinary rule cursus curiae that, once a Court has decided a matter after giving each side an opportunity of being heard, its order is final and binding on itself as much as on the parties and cannot be re-opened except on the presentation of some new matter not available when the original order was passed."
14. The reasoning of Mr. Shabir Ahmed, J. Was that where the appellant had been heard before issue of injunction and did not go in appeal but instead chose to make an application under rule 4, he was precluded from going in appeal against an adverse order passed under rule 4. It was so because in his view practically two appeals could not be allowed against the same order by resorting to the simple device of filing an application under rule 4 after the time provided for appeal against the order of rejection of such an application had expired. He said: --- "I have no doubt in my mind that the Legislature could not have intended that a party which had not availed of the remedy provided by Order XLIII, rule 1 (r) of the Cede of Civil Procedure within the time prescribed by the law of limitation by appealing against the original order could set the law of limitation at naught by the simple device of putting in a futile application under Order XXXIX, rule 4 and on its dismissal, by seeking to appeal against the order of dismissal of that application."
15. The learned Judge here perhaps seems to differentiate between cases where an application is made under this rule after the injunction was issued after hearing the parties and those where it is made in cases where injunction was issued without notice. But if once it is accented in principle that an order under rule 4 refusing to vary, discharge or set aside an injunction is appealable, then to import the intention of the Legislature to differentiate between classes of cases and place a bar on one category while giving green light to another category on the basis of such intention is a rather difficult argument which on good principles does look discriminatory. The learned Judge was perhaps also conscious of this aspect and that is why he also said :- ---------------.Order XXXIX, rule 4 of the Code of Civil Procedure contemplates a discharge, variation or setting aside of an injunction already issued and the remedy mentioned in order XLIII, rule 1 (r) of the Code of Civil Procedure cannot be availed of if the application under Order XXXIX, rule 4 has been dismissed."
16. Order XLII1, rule 1 (r) makes orders under rules 1, 2, 4 and 10 appealable. Thus :-
(1) It does not make an order under rule 3, granting an injunction before notice, appealable. It does not do so because such an order would be one passed under rule 1 or 2.
(2) Orders under rule 4 would mean orders contemplated by this rule i.e. Discharge, vary or set aside an order of injunction.
17. Therefore, an order rejecting an application would not be an order under rule 4 so as to attract the provisions of Order XLIII, rule 1 (r). It makes sense in that it would not have been proper to provide multiple opportunities of appeals against the same view of the trial Court. It would have resulted in procrastination of proceedings and even an abuse of the r process of the Court.
18. The objections filed by the Government and the order subsequently passed by the District Judge under appeal was not, therefore, passed under rule 4 but under rule 1 read with e rule 3 and is therefore appealable under rule 1, Order XXXIX read with Order XLIII, rule 1 (r). I, therefore, overrule the preliminary objection.
19. The learned counsel for the appellant urged that under section 9 of the Azad Jammu & Kashmir grant of Khalsa Waste Lands Act jurisdiction of the civil Courts has been taken away and that no injunction could be issued by them. The Act. Was framed in 1966 but only sections 7 and 9 were enforced. I have given my earnest consideration to section 9 which the learned counsel invoked to support his contention. The District Judge has left the matter undecided. He has stated that since the question of jurisdiction was to be the subject of an issue, he would not like to prejudge it.
20. Under section 9 no civil Court can issue an injunction but only in respect of matters of which such Courts cannot, under the Act take cognizance. There would be no quarrel with the proposition that civil Courts are supposed to possess jurisdiction over all matters of civil nature. An Act which ousts such jurisdiction has to be strictly construed. When the Government, through an Act seeks to oust such jurisdiction for its own benefit and to the detriment of the people, I have no doubt that the Courts would require such ouster to be unmistakable and beyond any doubt whatsoever.
21. The plaintiffs are seeking recognition of certain rights under a Proclamation known as 38-C of 1944, which at one time were granted to them by the Financial Commissioner. Is a suit to enforce such rights barred by section 9 of the Khalsa Lands Act? I have studied the question to some extent but I think judicial discretion demands that in view of the question not having been decided by the District Judge one way or the other, I should refrain from deciding the same. It is the normal practice that the question of jurisdiction should first be decided by the trial Court. The Government as defendant would be within its legal rights to demand that this question should be treated as a preliminary issue and decided first.
22. Nothing was urged about facts but to satisfy myself I went through the plaint and the documents attached with it. The plaintiffs are admittedly in possession of the lard. Some of their houses are also in this land. The balance of convenience is certainly on their side.
23. I, therefore, see no., force in this appeal, which is hereby dismissed.
24. S. A. H.