Allahabad High Court
Gurmej Singh And 7 Others vs Ranjit Kaur And 2 Others on 7 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2596
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 50 Case :- MATTERS UNDER ARTICLE 227 No. - 3189 of 2020 Petitioner :- Gurmej Singh And 7 Others Respondent :- Ranjit Kaur And 2 Others Counsel for Petitioner :- Praveen Kumar,Onkar Nath Vishwakarma Counsel for Respondent :- Arvind Kumar Tiwari,Arvind Srivastava Hon'ble Vivek Kumar Birla,J.
1. Heard Sri Pradeep Kumar, learned Senior Counsel assisted by Sri Onkar Nath Vishwakarma, learned counsel for the petitioners through video conferencing and Sri Arvind Srivastava along with Sri Arvind Kumar Tiwari, learned counsel for the caveator defendants-respondents and perused the record.
2. With the consent of learned counsel for the parties, present petition is being decided at this stage itself.
3. Present petition has been filed for setting aside the the order dated 27.8.2020 passed by District Judge, Pilibhit in Misc. Appeal No. 12 of 2020 (Ranjit Kaur and others vs. Gurmej Singh and others).
4. By the order dated 5.8.2020 the trial court has granted an ex-parte interim injunction by recording reasons. Defendant no. 1 is the purchaser of the property from one of the co-sharers. The order of ex-parte temporary injunction was granted and the plaintiff was directed to comply with the provision of Order 39 Rule 3 CPC and 28.8.2020 was fixed for hearing for temporary injunction application. The defendant after receiving the notice filed misc. appeal on 20.8.2020 prior to the date fixed by the trial court, which was decided by the lower appellate court vide impugned order dated 27.8.2020, whereby the order of trial court granting interim order was rejected.
5. By drawing attention to the prayer clause of the plaint Sri Pradeep Kumar, learned Senior Counsel submitted that the suit was for cancellation of the sale deed and for injunction both. This fact has been noticed by the lower appellate court at internal page 2 of the order. However, it is reflected from perusal of internal page 5 and internal page 13 (paragraph 23) that the lower appellate court proceeded as if the suit was injunction suit simplicitor and therefore, the order was set aside. Submission is that the order is wholly illegal.
6. Learned counsel for the defendant-respondent supported the impugned order.
7. That apart, this Court has put a pointed query to learned counsel appearing for the respondents that how the misc. appeal against the ex-parte injunction was maintainable and / or entertainable?
8. Learned counsel for the respondents by placing reliance on decision of Full Bench of this Court in the case of Zila Parishad, Budaun and others vs. Brahma Rishi Sharma 1970 AIR (Allahabad) 376 (FB) submitted that the misc. appeal filed by the defendants under Order 43 Rule (1) (r) CPC was maintainable. Paragraphs 9, 10, 11, 12, 13 and 16 of the aforsaid judgment are quoted as under:-
"9. Order 43, Rule (1) (r) pertinently reads:
"An appeal shall lie from ..... an order under Rule 1, Rule 2..... of Order XXXIX."
10. Re. Question (1): It is now to be seen whether an ex parte order of Injunction falls within the purview of Rule l(r) of Order 43.
11. Two things deserve notice at threshold. Firstly, the language of Rule l(r) is unhedged and broad. Secondly, courts should lean in favour of an interpretation which expands rather than shrinks a remedial right. A remedial provision of law is generally construed liberally. Rule 1 (r) creates a remedial right of appeal for protection of substantial and substantive rights.
12. An ad interim injunction may be granted under Order XXXIX or Section 151 in some cases. No appeal lies against an order under Section 151. be it ex parte or otherwise. An ex parte order of injunction made under Order XXXIX will fall either under Rule 1 or Rule 2. There is no other provision under which such an order can be made. Rule 1 (r) of Order 43 does not say that an appeal shall lie from a final order under Rule 1 or Rule 2 of Order XXXIX. No adequate reason is shown for interpolating the word 'final' before 'order' in Rule l(r). Courts do not ordinarily make additions in enactments. That is a legislative function.
13. Let us now examine the scheme of Rules 1 to 4 of Order XXXIX. Rules 1 and 2 provide for the making of an interim order of injunction. Rule 3 firstly provides that an interim injunction should ordinarily be granted after notice to the adversary party. Secondly, it provides that notice may be dispensed with where the court is satisfied that it would defeat the purpose of granting an injunction. Rule 4 provides that an order of injunction may be discharged or varied or set aside on an application made by the party dissatisfied with such order.
16. The language and the object of Rule 1(r) of Order 43 and the scheme of Rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte order of injunction. As soon as an interim injunction is issued and the party affected thereby is apprised of it, he has two remedies: (1) he can either get the ex parte injunction order discharged or varied or set aside under Rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided for under Order 43, Rule 1 (r), or (2) straightway file an appeal under Order 43, Rule 1 (r) against the injunction order passed under Rules 1 and 2 of Order 39. C.P.C. It is not unusual to provide for alternative remedies. For instance, when an ex parte decree is passed against a person, he has two remedies: either he may go up in appeal against the ex parte decree or he may seek to get the ex parte decree set aside by the same court."
(emphasis supplied)
9. Admittedly, the aforesaid judgment is of the year 1970 and amendments were made in the year 1976 Vide Section 86 of Act 104 of 1976 w.e.f. 1.2.1977, whereby Proviso to Rule 3 was added in Order 39 CPC providing powers to the trial court to grant injunction without giving notice to the opposite parties, Thus, with all respect at my command it is observed that judgment of the Hon'ble Full Court was based on the fact that at that point of time there was no specific provision giving power to the trial court for passing ex-parte order of temporary injunction.
10. By the same Section 86 of Amending Act 104 of 1976 Rule 3-A was also added to Order 39 CPC to provide that court is to dispose of application for injunction within 30 days.
11. Therefore, the Hon'ble Full Bench had no occasion to consider Rule 3 and Rule 3-A added to Order 39 CPC in the year 1976. May be, which could have substantially influenced the judgment of the Hon'ble Full Bench.
12. It would be appropriate to take note of relevant provision of CPC. Order 39 Rule 3 and 3A CPC and Order 43 Rule (1) (r) are quoted as under:-
"Order XXXIX CPC
3. Before granting injunction, Court to direct notice to opposite party - 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:
Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-
(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.
3A. Court to dispose of application for injunction within thirty days - Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.
Allahabad - Rule 3-A shall be omitted (Vide Noti. No. 103/IV-h-360 dt. Feb. 3, 1981, w.e.f. Oct. 3, 1981.
Order XLIII CPC
1. Appeals from orders-
(r) an order under Rule 1, Rule 2, (Rule 2-A), Rule 4 or Rule 10 of Order XXXIX.
Rule 2-A Ins. By Act 104 of 1976, S. 89 (w.e.f. 1-2-1977)"
(emphasis supplied)
13. As noticed above Rule 3-A stood omitted in State of Uttar Pradesh w.e.f. 3.10.1981.
14. Subsequently, Hon'ble Apex Court has held in A. Venkatasubbiah Naidu vs. S. Challappan and others 2000 (7) SCC 695 (paragraph 21) that the misc. appeal would not be maintainable before 30 days in case the injunction application is not decided, paragraphs 15, 21and 22 are quoted as under:-
"15. What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in clauses (a) & (b) of Rule 3 of Order 39. In our view such an Order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party.
21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.
22. Now what remains is the question whether the High Court should have entertained the petition under Article 227of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition."
(emphasis supplied)
15. In the present case, admittedly, the appeal was filed without appearing before the trial court that too prior to the date fixed before the trial court, which was fixed for 28.2.2020. The misc. appeal was filed on 20.8.2020 and was decided on 27.8.2020. Therefore, the order passed in misc. appeal is totally without jurisdiction as in view of A. Venkatasubbiah Naidu (supra), the misc. appeal itself was not maintainable.
16. The defendant has not filed any application before the trial court to vacate the ex-parte temporary injunction and it is also not a case where plaintiff is aggrieved that the trial court is not deciding or has failed to decide the temporary injunction application. Therefore, as observed by Hon'ble Supreme Court in A. Venkatasubbiah Naidu (supra), the order dated 5.8.2020 passed by the trial court cannot be deemed to be final order in nature on the date of expiry of thirty days mentioned in Order 39 Rule 3-A CPC. The natural consequence whereof is that misc. appeal under Order 43 Rule 1(r) CPC would not be maintainable.
17. It is also pertinent to note that as held by Hon'ble Supreme Court in A. Venkatasubbiah Naidu (supra) if any such appeal is filed, the appellate court shall be under obligation to take note of the omission of the subordinate court. Indisputably, no such observation regarding omission on part of the trial court has been made by the lower appellate court justifying entertaining misc. appeal, even if, for the sake of arguments the same was maintainable (which, in fact, was not in the present case).
18. It is also pertinent to note that the Rule 3-A added to Order 39 CPC by way of amendment in 1976 has no application in the State of U.P. as the same stood omitted vide Notification No. 103/IV-h-360 dt. Feb. 3, 1981, w.e.f. Oct. 3, 1981 in the State of U.P. Therefore, no finality, on failure of trial court to decide temporary injunction application or vacate the same on the date of expiry of thirty days mentioned in Order 39 Rule 3-A CPC as held in A. Venkatasubbiah Naidu (supra), would be attracted in the State of U.P.
19. Further, this Court has issued a Circular Letter dated 16.8.2017 regarding time bound disposal of the interim injunction application, which is quoted as under:-
"Through Registered Post/E-mail From, Mohd. Faiz Alam Khan, HJS, Registrar General, High Court of Judicature at Allahabad.
To, All the District & Sessions Judges, Subordinate to the High Court of Judicature at Allahabad.
C.L. No. 24/Admin. 'G-II' Dated: Allahabad 16.08.17 Sub: Time bound disposal of interim injunction application.
Madam/Sir Hon'ble Court has directed that all the subordinate courts must ensure to dispose of applications of interim injunction within six months, failing which they shall have to record reasons in the order sheet.
I am, therefore, directed to request you to circulate the instant direction amongst all the Judicial Officers working under your supervision and control and to ensure strict compliance of the same in letter and spirit.
Yours faithfully, Sd/-
(Mohd. Faiz Alam Khan) No. /Admin.'G-II' Dated: Allahabad 2017.
Copy forwarded for information and necessary action to:
1. The Registrar, High Court of Judicature at Lucknow Bench, Lucknow.
2. P.S. to all the Hon'ble Judges at Allahabad and also at Lucknow Bench, Lucknow to place the same before their Lordships for kind perusal.
3. The Director, Judicial Training & Research Institute, Gomti Nagar, Lucknow.
4. All the Judicial Officers posted in the Registry in Allahabad High Court and Lucknow Bench, Lucknow.
5. The Member Secretary, U.P. State Legal Services Authority, III floor, Jawahar Bhawan, Annexe Lucknow.
6. Section Officer, Admin. 'H' Section for compliance of guard file."
(Emphasis supplied)
20. Thus, in a way, even if Order 39 Rule 3-A CPC is omitted in the State of UP, a direction to ensure disposal of interim injunction application within six months has been given by this Court. This direction appears to be to balance the equity between the parties, as on one hand, party enjoys the ex-parte temporary injunction order would be interested in prolonging the same and on the other hand, if temporary injunction is not granted, the other party would be interested in prolonging the disposal of the same. Hence, in the State of U.P. in absence of applicability of Rule 3-A thirty days time limit can be safely treated to be six months for disposal of temporary injunction application and also for the purpose of deemed inclusion of order passed in exercise of powers under Proviso to Rule 3 of Order 39 CPC (after six months) in Order 43 Rule (1) (r) CPC.
21. The judgment of Hon'ble Full Bench in Zila Panchayat, Budaun (supra) was rendered in the year 1970 much prior to insertion of Proviso to Rule 3 of Order 39 CPC and Order 39 Rule 3-A CPC.
22. It is also pertinent to note that although amendments were made in Order 39 Rule 3 CPC by adding Proviso granting power to the trial court to grant ex-parte injunction without issuing notice to the opposite parties, however, no amendment was made in Order 43 Rule (1)(r) CPC by providing that the appeal would be maintainable under the aforesaid provision in case any order is passed in exercise of powers under Proviso to Rule 3. It may further be noticed that by means of Section 89 of amending Act 104 of 1976 Rule 2-A was added w.e.f. 1.2.1977 in Order 39 and also in Order 43 Rule (1)(r) CPC. Clearly, the legislature has no intention to provide for appeal under Order 43 Rule (1) (r) CPC in case any ex-parte injunction is granted before issuing notice to the opposite parties in exercise of powers under Proviso to Rule 3 of Order 39 CPC. The reason appears to be for not inserting Rule 3, wherein Proviso was added by Amending Act 1976, in Order 43 Rule (1) (r) CPC can be drawn from the insertion of Rule 3-A in Order 39 CPC by the same amending Act, whereby it was provided that the Court is to dispose of application for injunction within 30 days. Clearly, the legislature has no intention to provide for appeal from orders passed under Order 39 Rule 3 Proviso CPC. The Hon'ble Full Bench in Zila Parishad, Budaun (supra) and Hon'ble Supreme Court in A. Venkatasubbiah Naidu (supra) have held that such appeal is maintainable. The judgment in Zila Parishad, Budaun (supra) was rendered by Hon'ble Apex Court in the year 1970 and therefore, the Hon'ble Court had no occasion to consider the powers provided to the trial court under Proviso added to Rule 3 of Order 39 CPC in the year 1976. Insofar as maintainability of appeal against ex-parte injunction order under Order 43 Rule (1) (r) CPC is concerned, even Hon'ble Apex Court in the case of A. Venkatasubbiah Naidu (supra) has held that appeal is maintainable. However, in case any such appeal is preferred the appellate court shall be obliged to entertain the appeal as maintainable and further to take note of the omission of the subordinate court in complying with the provision of Order 39 Rule 3-A CPC. It is very pertinent to note that this observation has given after the observation made by Hon'ble Supreme Court in the aforesaid case that in a case where mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party shall be entitled to right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. A. Venkatasubbiah Naidu (supra) is a case from State of Tamil Nadu, where provision of Order 39 Rule 3-A CPC are applicable, which is not so in the State of Uttar Pradesh. The observations of the Hon'ble Supreme Court are, therefore, heavily in favour of entertaining the appeal after 30 days in view of provision of Rule 3-A, which has been extensively considered by the Hon'ble Supreme Court, which, in fact, is not applicable in the present case.
23. There is another aspect of the matter, no doubt, it cannot be held that the appeal against such ex-parte injunction or inaction on the part of the trial court in not deciding the application for grant of temporary injunction for long would not be maintainable. The same would be clearly maintainable in the light of judgments as noted above, however, such appeal can be entertained only when glaring facts are reflected on the part of the trial court in its action or omission as held in A. Venkatasubbiah Naidu (supra).
24. Thus, although Order 39 Rule 3 CPC is not included in Order 43 Rule (1) (r) CPC, however, same would be maintainable in view of law laid down in Zila Parishad, Budaun (FB Alld) (supra) and A. Venkatasubbiah Naidu (supra) by Hon'ble Supreme Court after 30 days in States, where Order 39 Rule 3-A CPC is applicable. However, in the State of U.P. after six months, in view of the Circular dated 16.8.2017 issued by this Court for ensuring the disposal of application of temporary injunction in six months as the language of first paragraph of the Circular dated 16.8.2017 reflects the same sentiments and intention as reflected in Order 39 Rule 3-A CPC.
25. Therefore, to my mind, maintainability of misc. appeal under Order 43 Rule (1) (r) CPC before six months cannot be claimed and hence, the same would not be maintainable.
26. Since, maintainability of such appeal against order passed in exercise of powers under Proviso to Rule 3 of Order 39 CPC does not come from the statutory provision i.e. Order 43 Rule (1) (r) CPC but is as per or comes from the judgments rendered, therefore, even if such appeal is maintainable, it has to be seen when it can be entertained.
27. To my mind, there is a difference in "maintainability" and "entertainability". The misc. appeal may be 'maintainable' but the same can be 'entertained' only on the parameters set out in the relevant statutory provisions and if there is no such provision of law available, then as per the law laid down by the Courts.
28. A reference may be made to a judgment of Hon'ble Supreme Court in the case of M/s Lakshmiratan Engineering Works Ltd. vs. Asst. Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur and another AIR 1968 SC 448, paragraphs 7 to 10 whereof are quoted as under:-
"(7) To begin with it must be noticed that the proviso merely requires that the appeal shall not be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. A question thus arises what is the meaning of the word 'entertained' in this context? Does it mean that no appeal shall be received or filed or does it mean that no appeal shall be admitted or heard and disposed of unless satisfactory proof is available? The dictionary meaning of the word 'entertain' was brought to our notice by the parties, and both sides agreed that it means either "to deal with or admit to consideration". We are also of the same opinion. The question, therefore, is at what stage can the appeal be said to be entertained for the purpose of the application of the proviso? It is 'entertained' when it is filed or is it finally 'entertained' when it is admitted and the date is fixed for hearing or is it finally 'entertained' when it is heard and disposed of? Numerous cases exist in the law reports in which the word 'entertained' or similar cognate expressions have been interpreted by the courts. Some of them from the Allahabad High Court itself have been brought to our notice and we shall deal with them in due course. For the present, we must say that if the legislature intended that the word 'file' or 'receive' was to be used, there was no difficulty in using those words. In some of the statutes which were brought to our notice such expressions have in fact been used. For example, under Order 41, Rule 1 of the Code of Civil Procedure it is stated that a memorandum shall not be filed or presented unless it is accompanied etc., in S. 17 of the Small Causes Courts Act, the expression is 'at the time of presenting the application'. In Section 6 of the Court Fees Act, the words are 'file' or 'shall be received'. It would appear from this that the legislature was not at a loss for words if it had wanted to express itself in such forceful manner as is now suggested by counsel for the State. It has used the word 'entertain' and it must be accepted that it has used it advisedly. This word has come in for examination in some of the cases of the Allahabad High Court and we shall now refer to them.
(8) In Kundan Lal v. Jagannath Sharma, AIR 1962 All 547 the Court was concerned with Order 21, Rule 90, of the Code of Civil Procedure which had been amended by the Court by changing the provisions of the original Code. The changed rule is as follows:
"Provided that no application to set aside the sale shall be entertained:
(a) upon any ground which should have been taken by the applicant on or before the date on which the sale proclamation was drawn up:
(b) Unless the applicant deposits such amount not exceeding 12½% of the sum realised by the sale or furnishes such security as the court may in its discretion fix, except when for reasons to be recorded it dispenses with the requirements of this clause.
(9) The word 'entertain' is explained by a Divisional Bench of the Allahabad High Court as denoting the point of time at which an application to set aside the sale is heard by the court. The expression 'entertain', it is stated, does not mean the same thing as the filing of the application or admission of the application by the court. A similar view was again taken in Dhoom chand Jain v. Chamanlal Gupta, AIR 1962 All 543 in which the learned Chief Justice Desai and Mr. Justice Dwivedi gave the same meaning to the expression 'entertain'. It is observed by Dwivedi, J. that the word 'entertain' in its application bears the meaning 'admitting to consideration', and therefore when the court cannot refuse to take an application which is backed by deposit or security, it cannot refuse judicially to consider it. In a single bench decision of the same court reported in Bawan Ram v. Kunj Beharilal, AIR 1962 All 42 one of us (Bhargava J.) had to consider the same rule. There the deposit had not been made within the period of limitation and the question had arisen whether the court could entertain the application or not. It was decided that the application could not be entertained because proviso (b) debarred the court from entertaining an objection unless the requirement of depositing the amount or furnishing security was complied with within the time prescribed. In that case the word 'entertain' is not interpreted but it is held that the court cannot proceed to consider the application in the absence of deposit made within the time allowed by law. This case turned on the fact that the deposit was made out of time. In yet another case of the Allahabad High Court reported in Haji Rahim Bux and Sons v. Firm Samiullah and Sons, AIR 1963 All 320 a Division Bench consisting of Chief Justice Desai and Mr. Justice S.D. Singh interpreted the words of O. 21, R. 90, by saying that the word 'entertain' meant not 'receive' or 'accept' but 'proceed to consider on merits' or 'adjudicate upon'.
(10) In our opinion these cases have taken a correct view of the word 'entertain' which according to dictionary also means 'admit to consideration'. It would therefore appear that the direction to the court in the proviso to S. 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai C.J.) holds that the words "accompanied by" showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under O. 41 of the Code of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. In Wharton's Law Lexicon, the word "appeal" is defined as the judicial examination of the decision by a higher Court of the decision of an inferior court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax."
(emphasis supplied)
29. From the discussions made hereinabove, such misc. appeal can be entertained only if it satisfies the parameters set by the judgments of the courts and not otherwise as the appellate court is under obligation to record reasons for entertaining the same as set out in A. Venkatasubbiah Naidu (supra).
30. No such action or omission on the part of the trial court exist in this case. On the contrary, in the light of Proviso to Rule 3 of Order 39 CPC reasons have been recorded by the trial court and directions were given to take steps, which were also taken by the plaintiff and defendant was duly served the notices. Hence, in view of the observation made in A. Venkatasubbiah Naidu (supra) not only the appeal was not maintainable but also there was no occasion to entertain the misc. appeal by the lower appellate court.
31. In my opinion, in any case, such appeal cannot be entertained in a routine manner and in no manner if filed by the defendant when after service of notice he has not put in appearance before the trial court to contest the temporary injunction application and has not filed objection to the same.
32. There is yet another aspect of the matter. Before Hon'ble Full Bench in Zila Parishad, Budaun (supra) two following questions were referred for consideration by the Full Bench:-
"(1) Whether the ex parte order issuing injunction against the defendants is appealable in the circumstances of this case?
(2) If the order is appealable can the appellant rely on fresh evidence which was not before the trial court?"
33. The question no. 1 was held in affirmative. The question no. 2 was answered as under:-
"The appellant as a matter of right cannot rely on fresh evidence in appeal which was not before the trial court until it is admitted by the appellate Court under Order 41, Rule 27, CPC."
(emphasis supplied)
34. Thus, there is yet another aspect of the matter insofar as merit of the case is concerned. In the case of Zila Parishad, Budaun (supra) while answering the Court question no. 2 it was held that the appellant as a matter of right cannot rely on fresh evidence in appeal which was not before the trial court until it is admitted by the appellate court under Order 41 Rule 27 CPC.
35. In the present case, even before the date fixed by the trial court, without putting in appearance in the trial court, the misc. appeal was filed and from perusal of the lower appellate court order it is reflected that the evidence on affidavit was filed by the parties (including the defendant) and was accepted by the lower appellate court also as such, and not under Order 41 Rule 27 CPC by recording reasons for accepting the same. This is clearly contrary to the intention as reflected in the answer given by the Hon'ble Full Bench to question no. 2 as already noted above in this judgment.
36. During course of argument learned counsel for the respondents sought to argue on the merits for grant of interim injunction and maintainability of the suit. All such issues can be raised before the trial court by the defendants-respondents herein.
37. Since this petition is being decided on the legal question involved in the present case and more so, when the defendants are represented before this Court and I have heard learned counsel for the parties at length, I find that the impugned order dated 27.8.2020 is not sustainable in the eye of law
38. From the discussions made hereinabove, it can, therefore, safely be held as under:-
I. Though in Order 43 Rule (1) (r) CPC Rule 3 (which necessarily include Proviso to Rule 3 of Order 39 CPC) has not been mentioned, however, in view of the judgment of Hon'ble Full Bench in Zila Parishad, Budaun (supra) and in A. Venkatasubbiah Naidu (supra) the appeal under the aforesaid provision would be maintainable.
II. Such appeal, if filed, would be maintainable only after expiry of thirty days, where the provision of added Rule 3-A to Order 39 CPC is in force. However, in the State of U.P., since the Circular dated 16.8.2017 has been issued providing for six months time for disposal of applications of interim injunction failing which the subordinate court must have to record reasons in the order-sheet, therefore, such misc. appeal would be maintainable only after expiry of six months.
III. In absence of any specific statutory provision, such appeal, if filed, on expiry of aforesaid time period can be entertained guided by the parameters set out in the judgment of A. Venkatasubbiah Naidu (supra) or in any other judgment on this issue.
IV. While entertaining such appeal the appellate court is bound to record reasons for entertaining such appeal, and such appeal must indicate the omission on the part of the trial court to decide such temporary injunction application finally, if filed, by the plaintiff or omission on the part of the trial court to decide an application filed by the defendant for vacating the interim order granted by the trial court within the said time period of six months (in the State of U.P.).
V. At the cost of repetition it may further be clarified that in case the temporary injunction application filed by the plaintiff or any other party to the suit interested in temporary injunction is not decided within the time period of six months in the State of U.P., he can file misc. appeal under the provisions of Order 43 Rule (1) (r) CPC, which can be entertained for the reasons recorded and in case of non-consideration of disposal of the stay vacation application filed by the defendant or any other party to the suit, he can also file misc. appeal under the aforesaid provision, which can also be considered for the reasons recorded as per the parameters set out by the Courts.
VI. If any such misc. appeal is filed, the same can be considered only on the evidence already on record before the trial court unless the additional evidence is received by the appellate court under Order 41 Rule 27 CPC as per the law by recording reasons. In other words, in such misc. appeal the appellant cannot rely on the evidence filed by him in the appellate court without the same having not been allowed by the misc. court under Order 41 Rule 27 CPC as per the law laid down by the Hon'ble Full Bench in the case of Zila Parishad, Budaun (supra).
39. Accordingly, for the discussions made hereinabove, the impugned order dated 27.8.2020 is hereby set aside.
40. At this stage, learned counsel for the respondents submits that the court below may be directed to decide interim injunction application within time bound period.
41. In the light of Circular dated 16.8.2017 as already noted above no further direction is required for disposal of interim injunction application.
42. It is expected that the Court below shall follow the directions as noted above in its letter and spirit provided the functioning of the court is not affected due to COVID-19 Pandemic.
43. Present petition stands allowed, however, with the observations as made above. No order as to costs.
Order Date :- 7.12.2020 Lalit Shukla