In a suit filed by the respondents, Haji Habib Ashraf and others, against the petitioner, Piran Ditta, they made an application for temporary injunction. The learned Civil Judge before whom the application was submitted declined to grant interim injunction and simply directed that notice of the application shall issue to the petitioner. Feeling aggrieved by the non-issuance of interim injunction, the respondents went in appeal before an Additional District Judge who accepted the appeal and issued that injunction till the disposal of application by the trial Court. That order of the learned appellate Court has been challenged by the petitioner by means of this civil revision.
2. It was contended by learned counsel for the petitioner that the appeal taken to the learned Additional District Judge was not competent and, therefore, his order was without jurisdiction. He cited Shakoor Hasam Patel v. Muhammad Hussain Shakoor and another (1) to support his contention.
3. On the other hand, it was urged by learned counsel for the respondents that since the respondents were adversely affected by the order made by the learned trial Court they could file appeal against that order. In this connec--tion, he placed reliance on (Messrs) The Associated Cement Companies Ltd. v. The Province of Punjab (2).
4. It was frankly conceded by learned counsel for the parties that the erstwhile High Court of West Pakistan, which decided the case of Shakoor Hasan Pawl, and the High Court of Judicature at Lahore, which decided the case of (Messrs) The Associated Cement Companies Ltd. were different from this Court, namely, the Lahore High Court and, therefore, this Court was not bound to follow the views expressed in those cases. I would, therefore, not like to go into the question whether judgment in the case of Shakoor Hasam Patel, which was delivered by a Division Bench of the former High Court of West Pakistan, is binding on me while sitting in Single Bench. I, however, must say that I have great respect for both the judgments cited at the Bar.
5. The case of (Messrs) The Associated Cement Companies Ltd. was decided by Kaikaus, J. (as he then was). He was of the opinion that the order refusing interim injunction pending decision of application for temporary injunction was an order under rules I and 2 of Order XXXIX of the Code of Civil Procedure and, therefore, appealable under clause (r) of rule 1 of Order XLIII of the said Code.
The view expressed by Kaikaus, J. Was, however, not followed by Constantine and Qadeeruddin JJ (as they then were) while deciding the case of Shakoor Hasam Patel. It was held by them that an order ;refusing to grant interim injunction was an order under rule 3 of Order XXXIX of the Code of Civil Procedure and, therefore, it did not fall within the purview of clause (r) of rule 1 of Order XLIII of the said Code. It was, however, observed by Constantine and Qadeeruddin, JJ, that if the order of trial Court regarding issue of notice of application for temporary injunction is accompanied by an interim injunction, the order would be appeal--able. The. Observations made in this behalf read as follows :- "We Have no. Hesitation in agreeing with the proposition that an appeal lies from an ex parte order granting an injunction. There seems to be no divergence of views on this point. L. D. Meston School Society v. Keshi Nath Misra is one of the rulings on this proposition and was cited by the counsel of the appellant. When an injuuction is issued the stage of `ex parte' or `after notice' is passed and jurisdiction is exercised under rule 1 or rule 2. The same would be true if an application for injunction, as distinguished from an application for player for ex ports orders, is dismissed and disposed of without giving notice to the opposite party."
(1) PLD 1957 Kar. 435 (2) PLD 1954 Lah. 151
6. I regret that I have not been able to pursuade myself to subscribe to the view of the learned Judges that if an interim injunction is issued in a suit, it can be appealed against by the defecdant but if the same is refused, it cannot be assailed by the plaintiff by means of an appeal, The appeal ability of an order is to be determined with reference to the law whereunder the order has been made and not with reference to the party who is likely t be hit by the order. If an order is open to appeal, it should be appealabl by -any of the parties who is aggrieved by it. As observed by Kaikaus, J" in the absence of a special provision, if a Court has power to make a particular order under a particular rule, the order as well as refusal to make that order will both fall under the same rule, and if an appeal is provided with respect to orders under that rule, both kinds of orders would be covered." I am, therefore, unable to accept the proposition that no appeal would lie if an interim injunction is refused to the plaintiff:
7. To my mind, the view taken by Kaikaus J. Appears, to be more in accord with the intention of the Legislature than the one expressed by Constantine and Qadeeruddin ii. There are variety of suits which would become infructuous for the withholding of temporary injunctions. For instance, in a suit for permanent injunction restraining the defendant from demolishing a house, if temporary injunction is not issued and the house is pulled down by the defendant, the whole suit would be defeated. Keeping in view such like cases the Legislature had permitted the trial Court, vide rule 3 of Order XXXIX of the Code of Civil Procedure, to issue temporary injunction without notice to opposite party and also enacted clause (r) rule 1 of Order XLIII of the Code of Civil Procedure to enable a plaintiff to appeal against the refusal of temporary injunction. This right would become negatory :f the plaintiff is not allowed to file appeal against an order refusing to issue an interim injunction pending decision on application for temporary injunction inasmuch as if the harm apprehended by him is done to him during the pendency of application the right of appeal guaranteed by clause (r) would be of no use to him. Having suffered the harm, he will not bother about the final decision of his application nor he would be interested in pursuing the main suit.
Looking at all these aspects of the matter, I believe the what was desired by the Legislature can be achieved only if order granting or refusing interim injunction pending disposal of application for temporary injunction is also allowed to be appealed against by the party who is unhappy with that order.
8. In view of the above discussion, with due deference to the learned Judges who decided the case of Shakoor Hasan Patel, I regret my inability to share their view and respectfully follow the dictum in the case of (Messrs) The Associated Cement Companies Ltd.
9. Since in the present case, by the order made by the learned trial Court interim injunction was refused to the plaintiff the respondents, who were plaintiffs in the suit, could prefer an appeal against that order. In this view of the matter, the appeal taken to the learned Additional District Judge was competent and the impugned order made by him on that appeal was not without jurisdiction.
10. Resultantly, this civil revision fails. It is dismissed with no order as to costs.