Orissa High Court
Natabar Das vs Braja Kishore Raha And Anr. on 31 August, 1998
Equivalent citations: AIR1999ORI33, AIR 1999 ORISSA 33
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT
1. The plaintiff-appellant has filed title suit No. 109 of 1996 for declaration of right of passage over the disputed land and for permanent injunction restraining defendants 1 and 2 from closing the passage. During the pendency of the suit, an application under Order 39, Rules 1 and 2, C.P.C. was filed which was dismissed by the trial Court after hearing both sides. Thereafter, the plaintiff Tiled Misc. Appeal No. 32 of 1996 under Order 43, Rule 1, C.P.C. before the Additional District Judge, Jajpur. During the pendency of the said appeal, the present appellant filed a Miscellaneous Petition under Order 39, Rules 1 and 2, C.P.C. seeking for ad interim order of injunction against the defendants-respondents forbidding them from changing the status quo of the suit land till disposal of the said Miscellaneous Appeal. In the said miscellaneous proceeding, the Additional District Judge passed an order on 8-8-1997 to the following effect :--
".................The O.Ps. arc directed to set apart 5 links of land towards western end of plot No. 306 to be used as a passage." Against the aforesaid order passed in the miscellaneous proceeding, the plaintiff has filed the present Misc. Appeal purporting to be one under Order 43, Rule l(r), C.P.C. on the ground that instead of passing an order of status quo in respect of five links of land, the lower appellate Court should have passed an order in respect of 15 links of land.
2. While entertaining the present appeal, on the basis of fresh application under Order 39, Rules 1 and 2, C.P.C., this Court had passed an order directing the parties to maintain status quo as on 15-9-1997 until further orders. As indicated in Order No. 2 at the time of entertaining the matter, it was expressly mentioned that the question of maintainability of the appeal under Order 43, Rule 1, Code of Civil Procedure, is to be considered at the lime of hearing.
3. Before entering upon the merits of the case, it is appropriate to decide about the maintainability of such an appeal. There is no dispute that an Order under Order 39, Rules 1 and 2, C.P.C., passed by a Court in its original jurisdiction is appealable under Order 43, Rule 1 in view of the specific provisions contained in Section 104(1)(i) read with Order 43, Rule 1 (r), C.P.C.. There is also no dispute that no further appeal lies against the final decision in such appeal in view of the specific provisions contained in Section 104(2) and Section 105(1), C.P.C. The learned counsel for the appellant has, however, contended that the present appeal is not against the final decision in the miscellaneous appeal filed before the lower appellate Court, but against an order passed in a miscellaneous proceeding under Order 39, Rules 1 and 2, C.P.C. and as such, the said order passed on the petition under Order 39, Rules 1 and 2 is appealable under Order 43; Rule 1 (r), C.P.C.
4. Section 104(1), C.P.C., provides that an" appeal shall lie from the orders indicated in the said sub-section and it further provides that save as otherwise expressly provided in the body of the Code, or by any law for the time being in force, no appeal shall lie against any other orders. Section 104(1)(i) provides for filing appeal against any Order made under rules from which an appeal is expressly allowed by rules. Order 43, Rule 1 provides the orders against which appeal is maintainable. Section 104(2) specifically states that no appeal shall lie from any order passed in appeal under this section. The aforesaid aspect is reiterated in Section 105(1) which lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction. A combined reading of the provisions of Sections 104, 05 and Order 43, C.P.C. makes it clear that an appeal against an order is maintainable if the order passed is made expressly appealable under the provisions contained in Section 104(1) or under Order 43, Rule 1 and no further appeal is maintainable against the decision in such appeal.
5. The moot question is whether any interim order passed in course of such appeal is further appealable by applying the provisions of order 43, Rule 1. The learned counsel for the appellant has relied upon the decisions reported in AIR 1983 Orissa 153, Madhusudan Dhal v. Gaya Prasad Giri, AIR 1982 Andhra Pradesh 284, K Gangulampa Naidu v. K. Gangi Naidu and AIR 1981 Calcutta 264. Smt. Mayarani Dutta v. Bhupal Banerjee in support of his contention that the appeal is maintainable, as the same is one under Order 43, Rule 1, C.P.C. against an order of the lower appellate Court in a proceeding under Order 39, Rules 1 and 2. On a careful perusal of the decisions of Orissa High Court and Andhra Pradesh High Court, it appears that those decisions do not support the contention of the counsel for the appellant, though the decision reported in AIR 1981 Calcutta 264 squarely supports his contention.
6. The decision reported in AIR 1983 Orissa 153 related to an appeal filed against the Order of the lower appellate Court refusing to re-admit the appeal before it for hearing. The title appeal before the lower appellate Court had been dismissed for default and an application for readmission of the appeal, as contemplated under Order 41, Rule 19, C.P.C. having been dismissed, the Miscellaneous Appeal under Order 43, Rule 1, C.P.C. was filed in the High Court. Such filing of appeal under Order 43, Rule 1 (t) having been specifically contemplated under Order 43, it is not understood as to how the ratio of the said decision is applicable to the present case. Moreover, the question now raised was neither raised nor considered in the said decision.
7. In the decision reported in AIR 1982 A.P 284, during pendency of an appeal against a decree under Section 96, C.P.C., before the first appellate Court, a petition for injunction under Order 39,Rutes 1 and 2,C.P.C. was filed and after disposal of such petition under Order 39, Rules 1 and 2, the matter was brought to the High Court and the question was as to whether an appeal under Order 43, Rule 1 (r) was maintainable or not. While holding such appeal to be maintainable, it was observed by the learned single Judge at page 288 :--
"In the instant case pending the appeal preferred against the disposal of the suit, an application under Order 39, Rule 1 and 2 is filed and that application is disposed of for the first time by the appellate Court. This is not a case where against the orders under Order 39, Rule 1 and 2 made by the trial Court an appeal is preferred to the District Court and as against the orders of the District Court the matter is carried to this Court. So this does not come under the mischief of Section 104(2), C.P.C., but squarely falls under Order 43, Rule l(r) Accordingly, an appeal shall lie under Order 43, Rule 1 (r) r/w Section 104(1), C.P.C. The authorities cited, as already noted, are distinguishable since the interlocutory proceedings there started from trial Court, men to the appellate Court and thereafter to the High Court attracting Section 104(2), C.P.C. Those High Courts are right in holding that no such appeal in those circumstances could be maintained. The case on hand is altogether different in nature and does not attract Section 104(2). Therefore an appeal does lie and is maintainable in the instant case."
A close reading of the aforesaid decision makes it clear that the ratio of the decision is not applicable to the facts of the present case. The miscellaneous proceeding in the present case arose out of an appeal under Order 43, Rule 1 C.P.C. and not in an appeal under Section 96 of the against a decree, as was the case in the decision of the Andhra Pradesh High Court.
8. Relying upon the earlier decision of the Calcutta High Court reported in AIR 1951 Cal 446 (Saraju Prasad v. Ganga Prasad) and differing from the subsequent single Bench decision of the very same High Court reported in (1969) 78 Cal WN 228, S.R. Chatterjee v. Hindusthan Steel Ltd. it was observed by a learned single Judge of the Calcutta High Court in the decision reported in AIR 1981 Calcutta 264 at page 265 (of AIR 1981):--
".......... ...If the prayer is made either before he trial Court or before the appellate Court for an order of temporary injunction and if the prayer is refused, surely that is a final order and the order is appealable and not revisable. The learned Advocate appearing on behalf of the petitioner tried to emphasise the fact that no original petition for temporary injunction was made by the petitioner-appellant before the District Judge, Burdwan. This contention cannot be accepted because it was submitted without going through the records. Before the trial Court an order for temporary injunction was asked for and the same was turned down. An appeal was preferred. In that Court an original application supported by an affidavit was put in and a prayer for temporary injunction made. That prayer too was refused. So in view of the aforesaid Bench decision, the order is appealable and not revisable."
There is no doubt that the aforesaid decision of the Calcutta High Court fully supports the contention raised by the counsel for the appellant, but with respect, I am unable to accept the ratio of the aforesaid decision. When the final order passed by an appellate Court in an appeal against an Order under Section 104 read with Order 43, Rule 1 is not appealable, it would be axiomatic to say that no appeal would be maintainable against an order passed by the very same appellate Court during the pendency of the appeal. The specific provision contained in Sub-Section (2) of Section 104 to the effect that "no appeal shall lie from any order passed in an appeal under this section" clearly means that no appeal can be filed against any order passed in appeal. If any order not finally disposing of the miscellaneous appeal under Section 104/Order 43 would be construed to be an order in original proceeding under provisions like Order 39 or Order 40 and subjected to appeal under Order 43, Rule I, the very purpose of incorporating Sub-Section (2) in Section 104 would be frustrated and may give rise to anomalous situation. From the prohibition contained in Section 104(2) it must necessarily follow that the right of appeal available against orders as enunciated in Order 43, Rule 1 must he subjected to the restrictions contained in Section 104(2), C.P.C. Such intention of the Legislature is made further clear in the further prohibition contained in Section 105 which lays down that unless otherwise expressly provided, no appeal shall lie from an order made by a Court in the exercise of its original or appellate jurisdiction. Even though the order is passed on an interlocutory application, still then, the order is passed in the miscellaneous appeal and the prohibition regarding filing of further appeal is applicable to final orders passed in the miscellaneous appeal as well as to orders passed on any interlocutory application, such as under Order 39 or Order 40, et cetera. I am fortified in the aforesaid conclusion by the observations made in the decision reported in AIR 1941 Allahabad 338, Mt. Umatur Rabab v. Mahadeo Prasad, AIR 1964 Kerala, 23, Challappan s/o Pathiramannel Krishnan v. K.P. Varughese, AIR 1975 Madras 3, C. Kalahasti v. P.C. Munuswami Chetti, AIR 1989 Bombay 68, Krishna Yeshwant Shirodkar v. Subhash Krishna Patil, as well as the observations made in the decision reported in AIR 1982 AP 284 (supra), wherein the learned single Judge accepted the aforesaid position, but distinguished the principle by observing that the said principle had no application to disposal of interlocutory matters in appeals against original decree. For the aforesaid reasons, I am of the view that the appeal filed under Order 43, Rule 1 (r), C.P.C. was not maintainable.
9. The learned counsel for the appellant had submitted that in case the appeal is found to be not maintainable, the appeal itself may be treated as a Civil Revision. Though the court-fee paid by the appellant in the Miscellaneous Appeal is less, in the peculiar facts and circumstances of the case, I treat this Misc. Appeal to be a Civil Revision and dispose of the matter as such.
10. The Miscellaneous Appeal before the appellate Court appears to be still pending and as such, it would not be proper to observe regarding the legality of the order passed by the a Court in the interlocutory matter. From the record it appears that an ad interim order of status quo had been passed by the trial Court and again by this Court while entertaining the mailer. I would, therefore, dispose of this matter by Observing that the appellate Court shall proceed to dispose of the appeal in accordance with law and till such disposal, the order of status quo passed by this Court shall continue. It is made clear that the appellate Court shall dispose of the mailer on merit in accordance with law without being influenced by the fact that an order of status quo has been passed by this Court or by any observations made in the order dated 8-8-1997. The matter is accordingly disposed of subject to the aforesaid direction. Both parties are directed to appear before the lower appellate Court on 21 st, September, 1998, to receive further instruction in the matter. I make no order as to costs.