SYED ARSHAD ALI, J.- Through the instant petition, the petitioners have called into question the judgment and order of the learned Additional District Judge/Izafi Zilla Qazi-II, Swat dated 19.04.2019, whereby appeal of the plaintiff/ respondent No. l was converted into revision and a status quo/restraining order was passed in his favour.
2. Essential facts of the case are that the plaintiff/respondent No. 1 had filed a suit against the present petitioners and respondents No. 2 & 3 for perpetual mandatory injunction to the effect that the defendants be restrained from any sort of interference in the suit property measuring 701 Karla' comprised of /chasm Nos. 1408/1 & 1408/3 situated within the local limits of Mauza Jabba Tehsil Charbagh, District Swat. Along with the plaint, the plaintiff has also filed an application for grant of temporary injunction. Upon the said application, notices were issued to the present petitioners and the other respondents by the learned trial Court vide order dated 09.04.2019.
3. Feeling aggrieved of the said order of learned trial Court dated 09.04.2019, the plaintiff/respondent No. 1 had preferred an appeal before the learned Additional District Judge/Izafi Zilla Qazi-II, Swat. The learned appellate Court vide impugned order dated 19.04.2019 has converted the said appeal into revision petition and had also issued a status quo/restraining order in favour of the plaintiff/respondent No. 1 and against the present petitioners.
4. The present petitioners being dis-satisfied from the said order of learned Revisional/appellate Court have Filed the instant writ petition.
5. Heard. Notwithstanding the fact that the learned appellate Court while allowing the appeal of the respondent No. 1 by granting ad-interim injunction through the impugned order has converted the appeal into revision petition, the issue before this Court is as to whether when on presentation of the plaint along with an application for interim relief, the Court through an order issues notice to the other side without granting ad-interim injunction is an appealable order. Before proceedings further, it would appropriate to reproduce the scheme of granting injunction under Order XXXIX of the Civil Procedure Code (The Code) and the orders which are appealable under section 104 of the Code.
ORDER XXXIX TEMPORAR Y INJUNCTIONS AND INTERLOCUT ORY ORDERS Temporary Injunctions I. Cases in Which temporary injunction miry he granted.-- Where in any suit it is proved by affidavit or otherwise- - a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors. the Court may by order grant a temporary injunction to restrain such cues, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court Minks fit, until the disposal of the suit or until further orders.
2. Injunction 10 restrain repetition or continuance of breach.-- (I) In any suit for restraining the defendant front committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of or any breach of contract or injury of like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms, as to the duration of the injunction, keeping tin account, giving security or otherwise, as the Court thinks fit.
(3) In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to he attached, and may also order such person to be detained in prison for a term not exceeding six months, unless in the meantime the Court directs his release.
(4) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto.
(2-A) An interim injunction passed under Rule 1 or 2 in the absence of defendant shall not ordinarily exceedfifteen days: Provided that such injunction may he extended for failure of its service on the defendant when such failure is not attributable to the plaintiff or when the defendant seeks time for defence of application, for injunction.
3. Before granting injunction Court to direct notice to opposite party.--The Court shall in all cases, before grunting an injunction direct notice of the application for the same to be given to the opposite party: Provided that, except in the case of sale of goods for default in payment, at the stipulated time, of a debt in respect of which the goods were pledged with any bunk, or where the injunction is to the granted against Government or a Government servant as such Or any statutory authority, board or corporation set up or established hi Government in any case not involving the ejectment ofany person from, or the demolition of any premises, the Court may, where it appears that the object of granting injunction would be defeated by the delay, dispense with such notice: Provided further that the period of notice under this rule to Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government shall not be less than two days nor exceed seven days.. , . -.
4. Order for injunction may be discharged, varied or set aside.-- 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.
ORDER XLIII APPEALS FROM ORDERS I.
1. Appeals from Orders.-- An appeal shall lie from the fallowing orders under the provisions of section 104, namely: Sub-clause (r):- an order under rule 1, rule 2, rule 4 or ride 10 of Order XXXIX; Section 104 C.P.C. Orders from which appeal lies.-- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:
(f) an order under section 35A;
(ff) an order under section 47,]
(fff) an order under section 91 or section 92 refusing leave to institute a suit:
6. There is no cavil to the legal proposition that on the first date of hearing, the Court has the jurisdiction either to grant or not to grant an ad-interim injunction. The enabling provision to grant such injunction is Order XXXIX Rules 1 & 2 of the Code, whereas Rule 3 from its language neither appears to be a substantive law nor indeed the repository power of the Court to grant injunction, rather it envisages for issuance of a notice to the other party before the granting of injunction. However, it does not preclude the Court to grant an ad-interim injunction even before issuing notice to the other party. It is further important to note that the issue before the learned Revisional Court was not the propriety of issuance of notice to the respondents but indeed was that the plaintiff had allegedly a prima facie case and despite that only notice was given to the other side and no ad-interim injunction was granted.
7. An order passed under Order XXXIX Rule 1 & 2 of the Code as stated above is appealable under sub-clause (r) of Order XLIII Rule l of the Code. Now the question is whether when on presentation of the suit, in this case, the learned Trial Court instead of granting ad-interim injunction had issued the notice would be an appealable order under Order XLIII Rule 1 (r) of the Code. This issue came up before the Hon'ble Lahore High Court in case of Messers. The Associated Cement Companies Ltd. vs The Province of Punjab reported as PLD 1954 Lahore 151. His Lordship B.Z. Kaikaus, J. while confronting with similar situation has answered this query as following:- The short question which I have to decide is whether the present order, an appeal against which has been filed, is one made under rule 2 or rule 3. The position taken up by the appellant, and which I regard as correct, is that this is an order refusing to grant an injunction pending the decision of the application for injunction. I am of opinion that the order which a Court passes either refusing or allowing an injunction whether that order relates to an interim injunction as in the present case or to a temporary injunction for the pendency of the suit must be under rules I or 2. Rule 3 does not provide for that a grant of an injunction. It merely provides a rule of procedures whist, is to be observed in making in order.
It provides for the issue of a notice to the opposite party. If the appeal be directed against the notice itself, for instance, if the defendant were to file an appeal saying that even a notice should not have been issued, the appeal would be incompetent, for the order of notice itself does not fall under rules I or 2. But it is not that part of the order against which the present appellant complains. He does not say that the notice should not have been issued. On the other hand and, he very much want the notice to remain. His grievance is that along with the no order grating interim in injunction should also have been passed. It is the refusal to make that order that is the reason for his appeal. If the jurisdiction to grant interim injunction existed under rule 3, the refusal would he an order under rule 3. On the other hand if the jurisdiction to grant injunction exists under rules I or 2 then the refusal to grant the Learned. - Counsel for the respondent concedes that an order granting an interim injunction for the pendency of application for injunction would be an order under rules I or 2. Rules 1 and 2 are not confined to injunctions granted for the whole period of the pendency of the suit. Both rules are wide in their terms. Rule I provides for any order passed for preventing waste etc. Rule 2 clarifies that the duration of the injunction and the terms on which it is issued are in discretion of Court. So the grant of an interim injunction of the kind asked for in this case would fall under these two rules. I cannot agree that whereas the grant of the injunction would be under rules 1 or 2, the refusal of that very injunction would be under rule 3.
Ordinarily, and 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 falls under the same rule, and if an appeal is provided with respect to, orders under that rule, both kinds of orders would be covered.
8. To further substantiate this view, I have before me case law on the subject of the cross border jurisdiction of the Hon'ble Bombay High Court in case titled Rajendraprasad R. Singh vs Municipal Corporation of Gr. Bombay (AIR 2003 Bombay 392). The learned Judge while dilating upon this issue after thoroughly examining the case law on the subject in Para-9 of the judgment has held as following:-
9. It cannot be doubted that the power to grant injunction under Rules 1 and 2 of Order 39 includes a power not to grant an injunction. Issuance of a notice under Rule 3 of Order 39 amounts to an order not to grant injunction till notice is served on the opposite party. Therefore, when the court passes an order of issuance of a notice, it amounts exercise of discretion by the court not to grant injunction till notice is issued. As the order granting an ex parte injunction is appealable, so would be the order of declining to grant ex parte injunction. Relying upon the judgment in M/s. Parijatha v. Kamalaksha Nayak reported in A.I.R 1982 Karnataka 105 and Abdul Shukoor Sahib v. Umachander reported in AIR 1976 Madras 350, it was contended that the appeal does not lie even against an ex parte order of injunction and the remedy of the aggrieved defendant lies in making an application under Rule 4 of Order 39 of the Code of Civil Procedure.
However, preponderance of judicial view is that an appeal lies against an ex parte order granting ad interim injunction. In Zilla Parishad Buduan v. Brahma Rishi Sharma reported in AIR 1970 Allahabad 376 the Full Bench of the Allahabad High Court, in M/s. Alstral Traders v. Haji Mohammed Shahan Dar, Reported in AIR 1982 .Jammu and Kashmir 124 the Full Bench of the Jammu and Kashmir High Court, in Akmal Ali v. State of Assam reported in AIR 1984 Gauhati 86 the Full Bench of the Gauhati High Court, in Patel Jasmat Sangaji v. Gujarat Electricity Board reported in 1982 (23) Gujarat Law Reporter 104 (AIR 1982 Guj 264) the Division Bench of Gujarat High Court, in United Commercial Bank v. Han m a n Synthetics Ltd. reported in AIR 1985 Calcutta 96 the Division Bench of the Calcutta High Court, and in Airport Authority of India v.
Paradise Hotel and Restaurant (sic) the Single Judge of the Gauhati high Court have all held that an appeal lies against ex parte order of injunction passed under Rule 1 or Rule 2 of Order 39 of the Code of Civil Procedure. So far as this Court is concerned, the matter is concluded by the decision of this court in SK Jusa v. Ganpat Dagdu Gire wherein a learned Single Judge or this court has held that an appeal lies against an order of Court granting ex parte temporary injunction against defendants with a notice to show cause to the defendants. In my opinion, the order granting ex parte ad interim injunction as well as order declining to grant ex parte temporary injunction and issuance of a notice, are both orders passed under Rule 1 or 2 of Order 39 of the Code of Civil Procedure. If the first is appealable, so must be the second.
9. This issue was further elaborated by the Hon'ble Gauhati High Court of India in case titled Sajjan Kumar Tharad v. Smti Deoris Marbaniang (AIR 2011 GAUHATI 47). The learned judge while considering the oscillating views of different superior Courts of the Indian jurisdiction has reached at the following conclusion:-
18. In my considered opinion, Rule 3 of Order 39, CPC cannot be read in isolation. 1 am also of the view that Rules 1 to 5 of Order 39 are intrinsically related to each other and have to be read harmoniously. I reiterate the view taken by the Hon'ble Bombay High Court that the provisions of Rule 3 are only procedural in nature. The words "before granting injunction" in the marginal heading of Rule 3 clearly indicates that this Rule is a continuance of Rule 1 and 2 and unless implied existence of Rules 1 and 2 in the entire chapter is not inferred it would make the provisions of Rule 3, 3A, 4 and 5 otiose and redundant. I am also of the view that if the orders passed in Rule 3, i.e. issuing pre-injunction notice to the opposite party, is taken out of rigour of Order 43, Rule I (r) CPC, the trial Court may adopt a practice of refusal ad interim ex parte injunction by way of issuing notices, without assigning reasons so that such orders cannot be challenged by way of appeal. On these premises, I hold that orders of issuance of notice simpliciter, purportedly passed under Order 39, Rule 3, are essential element of Rules 1 and 2, meaning refusal to grant ex parte injunction, and as such, orders are appealable under Order 43, Rule I (r) read with Section 104 (1)(i) of the CPC.
10. Against that there is a judgment of Indian High Court in case Gairaj Singh and others v.
Ramkumar and others reported in AIR 1992 MADHYA PRADESH 316 as well as the judgment of learned Lahore High Court in case Ali Associates through Managing Director vs Noor Hussain & 24 others reported as 2017 CLC 857. With profound respect, the Hon'ble Courts have decided the issue on hyper technicalities by referring to the definition of' Order as provided in the Black's Law Dictionary. However, with due respect, I do not find myself in consonance with the aforesaid laws and C fully endorsed the view laid down by the Hon'ble Lahore High Court in case titled Messers. The Associated Cement Companies Ltd. vs The Province of Punjab ( PLD 1954 Lahore 151), Bombay I Ed Court in case titled Rajendraprasad R. Singh vs Municipal Corporation of Gr.
Bombay (AIR 2003 Bombay 392) and Gauhati High Court in case titled Sajjan Kumar Tharad v. Smti Deoris Marbaniang (AIR 2011 GAUHATI 47) which need no further reiteration. There fore, the assertion of learned counsel for the present petitioners that the impugned order of the learned appellate Court is without jurisdiction is misconceived. However , it is true that the learned appellate Court has wrongly converted the appeal into revision petition for the aforesaid reasons.
11. Thus, it would be only a wastage of time to remand the case to the learned appellate Court to re-decide the issue as an appeal because only ad-interim injunction order was granted in favour of the plaintif f/respondent No. 1 and it is now for the Trial Court to finally decide the application of the plaintif f for temporary injunction.
12. In this view of the matter , this petition having no merit is accordingly dismissed.