Kerala High Court
Goerge Varghese @ George K. Varghese vs Dr.Issac Varghese on 9 November, 2012
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
FRIDAY, THE 9TH DAY OF NOVEMBER 2012/18TH KARTHIKA 1934
FAO.No. 309 of 2012 ()
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AS.152/2012 of ADDL. SESSIONS COURT (SPL. COURT), KOTTAYAM
OS.293/2010 of MUNSIFF COURT, VAIKOM
APPELLANT(S)/PETITIONER/PLAINTIFF:
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GOERGE VARGHESE @ GEORGE K. VARGHESE,
S/O.LATE ITHAC VARGHESE, KARITHANAM HOUSE
THEKKENADA PO, NADUVILE VILLAGE, VAIKOM TALUK.
BY ADV. SRI.K.G.BALASUBRAMANIAN
RESPONDENT(S)/DEFENDANTS:
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1. DR.ISSAC VARGHESE,
S/O LATE ITHAC VARGHESE, 3205, ROBIN HOOD COURT
ELLICOTT CITY, MD 21043, USA.
2. K.V.MATHEW, AGED 50 YEARS
S/O VARGHESE, KOOTTIPARAMBIL HOUSE
THEKKENADA PO 686 146, NADUVILE VILLAGE
VAIKOM TALUK.
3. PAUL @ PAULSON JOSEPH,
S/O JOSEPH, VALIYATHARAYIL HOUSE,
CHEMMANATHUKARA PO, 686 606, VAIKOM VILLAGE
VAIKOM TALUK.
4. ANTONY @ ANTHAPPAN,
S/O JOSEPH @ PAPPU, MAPPILASSERIL HOUSE,
VAIKOM PO, 686 141, KOTTAYAM DT.
5. UTHAMAN,
S/O PURUSHAN, MAPPILASSERIL HOUSE,
VAIKOM PO, 686 141, KOTTAYAM DT.
R2 & 3 BY ADVS. SRI.C.S.MANILAL
SRI.S.NIDHEESH
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
09-11-2012, ALONG WITH OPC. 3345/2012, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
VPV
"C.R."
P.N.RAVINDRAN, J.
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F.A.O.No.309 of 2012 & O.P.(C)No.3345 of 2012
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Dated this the 9th day of November, 2012
JUDGMENT
The appellant in F.A.O.No.309 of 2012 is the plaintiff in O.S.No.293 of 2010 on the file of the Court of the Munsiff of Vaikom. The respondents are the defendants therein. The appellant and the first respondent are brothers, the appellant being the younger of the two. Their father owned a parcel of land, situate in Sy.Nos.68/4A and 68/4B of Naduvile Village, Vaikom Taluk, Kottayam District. He had executed Ext.A1 gift deed dated 31.3.1969 in respect of the said parcel of land, settling it on the first respondent, who was then employed in the United States of America. Contending that though Ext.A1 gift deed was executed, it did not take effect as it was not accepted and acted upon by the donee during the life time of the donor and the donor had executed Ext.A11 Will on 10.4.1979 bequeathing the property to him and he is in possession and enjoyment of the land, the appellant instituted O.S.No.293 of 2010 in the Court of the Munsiff of Vaikom for a declaration that Ext.A1 gift deed executed by his father in favour of the first defendant is null and void. He also prayed for a permanent prohibitory injunction restraining F.A.O.No.309 & O.P.(C)No.3345 of 2012 2 the defendants from trespassing into the plaint schedule property or from committing acts of waste therein. He contended that he is in possession and enjoyment of the property as a legatee under Ext.A11 Will. Various other related contentions were also raised in the plaint.
2. The defendants filed a written statement resisting the suit. They contended inter alia that the gift deed was accepted and acted upon, that the first defendant is in possession and enjoyment of the property and that he has assigned portions thereof to defendants 2 to
5. As regards the production of the original of the gift deed by the appellant/plaintiff, they contended that it had been handed over to him by the first defendant for the purpose of executing a general power of attorney so as to enable him to manage the plaint schedule property during the absence of the first defendant, in India.
3. Defendants 2 and 3 in O.S.No.293 of 2010 had earlier instituted O.S.No.144 of 2010 against the appellant herein and three others for a permanent prohibitory injunction restraining them from trespassing into the plaint schedule property and seeking other reliefs. The appellant herein was the first defendant in that suit and he filed a written statement, raising more or less the very same contentions set out by him in the plaint in O.S.No.293 of 2010.
4. The suits were jointly tried. By decree and judgment F.A.O.No.309 & O.P.(C)No.3345 of 2012 3 delivered on 4.4.2012, the Court of the Munsiff of Vaikom dismissed O.S.No.293 of 2010 filed by the appellant. O.S.No.144 of 2010 filed by defendants 2 and 5 therein was decreed and the appellant was restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property, from destroying the boundary fencing and the boundary marks and from committing acts of waste therein.
5. Aggrieved by the decree and judgment in O.S.No.144 of 2010, the appellant filed A.S.No.151 of 2012 in the Court of the District Judge of Kottayam along with I.A.No.920 of 2012 to stay the operation of the decree passed by the trial court. Aggrieved by the decree and judgment dismissing O.S.No.293 of 2010, the appellant filed A.S.No.152 of 2012 in the Court of the District Judge of Kottayam. In that appeal he filed I.A.No.922 of 2012 for a temporary injunction restraining the respondents in the appeal from trespassing into the plaint schedule property or from interfering with his possession and enjoyment thereof or from committing acts of waste therein or from inducting strangers therein or from altering the nature and lie of the property. Though initially by order passed on 30.5.2012, the lower appellate court stayed the operation of the decree in O.S.No.144 of 2010, after hearing both sides, the lower appellate court dismissed I.A.No.920 of 2012 by order passed on 17.9.2012. F.A.O.No.309 & O.P.(C)No.3345 of 2012 4 The said order is under challenge in O.P.(C)No.3345 of 2012. Though initially an interim order of injunction was passed on I.A.No.922 of 2012 in A.S.No.152 of 2012, after hearing both sides, the lower appellate court vacated that order and dismissed the application for injunction by order passed on 17.9.2012. The said order is under challenge in F.A.O.No.309 of 2012. Having regard to the fact that the two suits were jointly tried and disposed of, F.A.O.No.309 of 2012 and O.P.(C)No.3345 of 2012 were taken up and heard together.
6. I heard Sri.K.G.Balasubramanian, learned counsel appearing for the appellant and Sri.C.S.Manilal, learned counsel appearing for the respondents. Sri.K.G.Balasubramanian, learned counsel for the appellant contended that the lower appellate court has not while dismissing I.A.No.922 of 2012 in A.S.No.152 of 2012, considered the apprehension expressed by the appellant that the respondents are likely to transfer the plaint schedule property to third parties with a view to create third party rights and are also likely to commit acts of waste therein and to alter the nature and lie of the property. The learned counsel contended that a reading of the order dismissing I.A.No.922 of 2012 will show that the court below has only considered the entitlement of the appellant for an interim order of injunction restraining the respondents from trespassing into the plaint schedule F.A.O.No.309 & O.P.(C)No.3345 of 2012 5 property and therefore, the order passed by the court below is liable to be set aside. The learned counsel for the appellant contended that the respondents have not undertaken that they will not induct strangers into the property or transfer it to third parties and that they have also not undertaken that they will not commit acts of waste in the property or alter the nature and lie of the property and therefore, the court below ought to have issued an interim order of injunction restraining the respondents from inducting strangers into the plaint schedule property or from alienating it to third parties or from altering its physical features or from committing acts of waste therein. As regards the order passed by the court below dismissing I.A.No.920 of 2012 in A.S.No.151 of 2012, the learned counsel contended that the appellant is in possession and enjoyment of the property and therefore, unless the decree passed by the trial court in O.S.No.144 of 2010 is kept in abeyance, the appellant will be put to irreparable loss.
7. Per contra, Sri.C.S.Manilal, learned counsel for the respondents contended that in view of the decree passed by the trial court in O.S.No.144 of 2010 filed by respondents 1 and 2 in F.A.O.No.309 of 2012, the appellant cannot seek or be granted an interim order of injunction restraining the defendants in O.S.No.293 of 2012 from entering into the plaint schedule property or from committing acts of F.A.O.No.309 & O.P.(C)No.3345 of 2012 6 waste therein or from altering the nature and lie of the property or from transferring it to third parties and therefore, the order passed by the court below does not merit interference. The learned counsel for the respondents also contended that no appeal lies from the order passed by the lower appellate court dismissing the application for temporary injunction filed by the plaintiff in O.S.No.293 of 2010 and that on the terms of sections 104 (2) and 105 of the Code of Civil Procedure, F.A.O.No.309 of 2012 is liable to be dismissed as not maintainable. The learned counsel for the respondents contended that except from orders passed by the appellate court under rule 19 of Order XLI of the Code of Civil Procedure refusing to readmit an appeal dismissed for default or under rule 21 thereof refusing to rehear an appeal or under rules 23 and 23-A of Order XLI of the Code of Civil Procedure remanding a suit, an appeal does not lie from any other order passed by the appellate court and therefore, the order under challenge in the instant appeal not being one issued under rules 19, 21, 23 and 23-A of Order XLI of the Code of Civil Procedure, the instant appeal is not maintainable.
8. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I shall first deal with the objection raised by Sri.C.S.Manilal, learned counsel appearing for the F.A.O.No.309 & O.P.(C)No.3345 of 2012 7 respondents, to the maintainability of F.A.O.No.309 of 2012. It is contended that as the order impugned in the appeal was passed on an application for interim injunction filed by the unsuccessful plaintiff in the lower appellate court, in view of the provisions in sections 104 and 105 of the Code of Civil Procedure, the appeal is not maintainable. Shorn of details, the contention is that except orders passed by the appellate court under rules 19, 21, 23, 23-A of Order XLI of the Code of Civil Procedure, no other order passed by the appellate court exercising jurisdiction under section 96 of the Code of Civil Procedure is appealable. The learned counsel contended referring to section 104 (2) and Order XLIII of the Code of Civil Procedure that there is no stipulation either in section 104 or in Order XLIII of the Code of Civil Procedure to the effect that an appeal will lie from an order passed by the appellate court exercising jurisdiction under section 96 of the Code of Civil Procedure on an application for temporary injunction filed by the appellant under Order XXXIX of the Code of Civil Procedure and therefore, the instant appeal is not maintainable. In my opinion, the said contention is plainly untenable. All that sub-section (1) of section 105 of the Code of Civil Procedure stipulates is 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". The purport of F.A.O.No.309 & O.P.(C)No.3345 of 2012 8 sub-section (1) of section 105 of the Code of Civil Procedure is that the right to file an appeal has to be conferred. No other meaning can be attributed to the phrase "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". The said stipulation can only mean that an appeal from an order passed by a court exercising original jurisdiction or appellate jurisdiction will lie only if it is expressly provided for. Sub-section (1) of section 104 of the Code of Civil Procedure sets out the orders from which an appeal lies. Inter alia, it is stipulated that an appeal would lie from any order made under rules from which an appeal is expressly allowed by rules. The reference is evidently to Order XLIII of the Code of Civil Procedure, which sets out the orders from which an appeal lies. Neither section 104 (1) nor Order XLIII of the Code of Civil Procedure stipulates that orders of the kind referred to therein are appealable only if they are passed by the court exercising original jurisdiction. It is nowhere stipulated that if the court exercising appellate jurisdiction passes such orders, no appeal would lie. Clause (r) of sub-rule (1) of Order XLIII of the Code of Civil Procedure stipulates that an appeal shall lie from an order under rules 1, 2, 2A, 4 and 10 of Order XXXIX of the Code of Civil Procedure. It is not stipulated that orders under these rules passed by F.A.O.No.309 & O.P.(C)No.3345 of 2012 9 the court in exercise of its original jurisdiction alone are appealable. In the absence of any stipulation in sub-section (1) of section 104 or Order XLIII of the Code of Civil Procedure to the effect that an appeal shall lie from the orders of the kind mentioned therein, only if they are passed by a court exercising original jurisdiction, I am not persuaded to agree with the learned counsel for the respondents that in view of sub-section (1) of section 105 of the Code of Civil Procedure, this appeal is not maintainable.
9. That takes me to the question whether the appeal is liable to be rejected as not maintainable, in the light of the stipulation in sub-section (2) of section 104 of the Code of Civil Procedure that "no appeal shall lie from any order passed in appeal under this section". Interpreting the aforesaid provision, a learned single Judge of this Court held in Ganesan v. Sadasivan [2004 (1) KLT 523] that an appeal would lie from an order passed in an interlocutory application in a regular appeal. The suit filed by the appellant in that case was dismissed by the trial court. He thereupon filed an appeal challenging the decree dismissing the suit and in that appeal filed an application for temporary injunction under Order XXXIX, Rule 1 of the Code of Civil Procedure, restraining the respondents from forcefully entering into the plaint schedule property. The appellate court declined to grant F.A.O.No.309 & O.P.(C)No.3345 of 2012 10 an interim order. He thereupon filed an appeal to this Court. An objection was raised to the maintainability of the appeal on the ground that no appeal would lie from the order passed by the appellate court. Reliance was placed on the decision of this Court in Chellappan v. K.P.Varughese (1963 KLT 502) in support of the said contention. In Chellappan v. K.P.Varughese (supra) a learned single Judge of this Court held that no appeal would lie to this Court under Order XLIII Rule 1 of the Code of Civil Procedure, from an order passed by the lower appellate court in an appeal filed under section 104 of the Code of Civil Procedure from an interim order of injunction passed by the trial court. Overruling the contention regarding maintainability of the appeal, the learned single Judge of this Court in Ganesan v. Sadasivan (supra) held as follows:-
"This appeal is filed against the order in I.A.575/2003 in A.S.60/2003 on the file of the Sub Court, Neyyattinkara. The interlocutory application was filed for temporary injunction under O.39, Rr.1 and 2 of Code of Civil Procedure restraining the respondent from forcible eviction of the petitioner from the plaint schedule property. The suit filed by the petitioner was dismissed by the trial court and against the Judgment and Decree he filed appeal before the first appellate court. Pending appeal the above interlocutory application was field for interim relief. The appellate court has declined to grant interim relief and therefore the appellant has approached this Court by way of this appeal. Learned Counsel for the respondent submitted that this appeal itself is not maintainable as the appeal is filed against an interim order passed in appeal. He F.A.O.No.309 & O.P.(C)No.3345 of 2012 11 relied on the decision of this Court reported in Chellappan v. Varughese (1963 KLT 502) where this Court had considered the maintainability of an appeal field against an interlocutory order passed in C.M.A. This Court found that under S.104(2) of Code of Civil Procedure there is a clear bar of filing further appeal. This decision is followed in various other decisions of this Court. This Court also said that the power given to an appellate court under S.107 Code of Civil Procedure is only part of its appellate jurisdiction. It cannot be characterised as an original jurisdiction in an appellate court. It confers power on the appellate Judge not only to dispose of the appeal on its merits, but also to pass an interlocutory or incidental order deemed necessary in the circumstances of the case to maintain the status quo or to preserve the subject-matter of the appeal till the disposal of the appeal, as an original court is empowered to do in the case of suits before it.
2. This appeal is not a similar appeal but it is against the interlocutory order passed in a regular appeal and the bar under S.104(2) of Code of Civil Procedure is not applicable. No decision of this Court is brought to my notice where this Court has held that an interlocutory order in a regular appeal is not appealable under O.43 of the Code of Civil Procedure. The Madras High Court in the decision reported in Ramaswamy v. Chinna Sithammal (AIR 1976 Madras 63) has held that in order to attract the bar under S.104(2), the appeal should be filed under S.104 of Code of Civil Procedure. If the appeal is under S.96 Code of Civil Procedure, and the order passed is otherwise appealable under O.43, the same cannot be said to be not maintainable in law. In fact the question as in this case is directly answered by the Andhra Pradesh High Court in K.Gangulappa Naidu v. K.Gangi Naidu (AIR 1982 AP 284). In that case also the application for interim injunction filed in a regular appeal was disposed of by the appellate court and a C.M.A. was filed before the High Court under O.43, R.1(r), Code of Civil Procedure. The High Court held that the appeal is maintainable. I respectfully agree with the views of the learned Judges of the Andhra Pradesh and Madras High Courts. In fact O.43 specifically provides for filing appeals against certain F.A.O.No.309 & O.P.(C)No.3345 of 2012 12 orders which can be passed only in first appeal. Therefore it cannot be said that in no case interlocutory orders passed in regular appeal is appealable. Therefore I find that this First Appeal from Order is maintainable." (emphasis supplied) The learned single Judge placed reliance on the decision of a learned single Judge of the High Court of Madras in Ramaswamy Reddiar and others v. Chinna Sithammal and others (AIR 1976 Madras 63) and the decision of a learned single Judge of the High Court of Andhra Pradesh in K.Gangulappa Naidu and others v. K.Gangi Naidu (AIR 1982 Andhra Pradesh 284) in holding that the appeal is maintainable.
10. In Ramaswamy Reddiar and others v. Chinna Sithammal and others (supra) a learned single Judge of the Madras High Court held that in order to attract sub-section (2) of section 104 of the Code of Civil Procedure, the appeal should be one falling under section 104. It was held that if the appeal is one under section 96, and not under section 104, sub-section (2) of section 104 is not applicable. Paragraphs 3 and 4 of the decision in Ramaswamy Rediar and others v. Chinna Sithammal and others (supra) are extracted below:-
"3. Section 104 (2) says that no appeal shall lie from any order passed in appeal under the said section. In order to attract sub-section (2), the appeal should be one falling under Section 104. If the appeal is one under Section 96, and not under Section 104, sub-section (2) F.A.O.No.309 & O.P.(C)No.3345 of 2012 13 of the latter section is not applicable. If Section 104 (2) is construed otherwise, that is, as applying to appeals coming under Section 96, also the position would be anomalous. Sub-clauses (t) and (u) of Rule 1 of Order XLIII provide for appeals against orders passed under one provision or other of Order XLI, which governs appeals coming under Section 96. The said two sub- clauses cannot possibly refer to any order by a trial court. While clause (t) relates to an order refusing to re- admit (or to re-hear) an appeal (as in the present case), clause (u) relates to an order of remand made by an appellate court under Rule 23 of Order XLI. These two provisions would become meaningless if sub-section (2) of Section 104 is made to apply to appeals under Section
96. No one can suggest that no appeal lies against an order of remand mad under Order XLI, Rule 23.
4. In the present case, the order of the court below is one under Order XLI, Rule 19 of the Code, made in appeals under Section 96. That order is certainly an appealable one, as per Order XLIII, Rule 1
(t) of the Code. I am quite clear that sub-section (2) of Section 104 has no application to an order made in an appeal coming under Section 96. "
11. In K.Gangulappa Naidu and others v. K.Gangi Naidu (supra) a learned single Judge of the Andhra Pradesh High Court held after referring to sections 104, 105 and 107 of the Code of Civil Procedure that if in a regular appeal pending before the appellate court, an order is passed under Order XXXIX rules 1 and 2 or as a matter of fact under any of the Orders mentioned in Order XLIII, then the appeal is maintainable under Order XLIII rule 1 of the Code of Civil Procedure. Paragraph 10 of the decision of the learned single Judge in K.Gangulappa Naidu and others v. K.Gangi Naidu (supra) is F.A.O.No.309 & O.P.(C)No.3345 of 2012 14 extracted below:-
"10. Section 107 is with reference to powers of appellate Court and it is as under:
"107. Powers of Appellate Court: (1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power-
(a) to determine a case finally.
xx xx xx xx (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Court on Courts of original jurisdiction in respect of suits instituted therein."
Section 107 (2) makes it clear that the appellate Court exercises the same powers and performs the same duties as are conferred and imposed by the C.P.C. on Courts of original jurisdiction in respect of the suits. It is not in dispute that the appellate Court entertains applications under O.39, Rr.1 and 2, C.P.C. for the first time when appeals are pending before it. When an order is passed on such applications, it is very plain that an appeal lies against such an order under O.43, R.1, C.P.C. O.43 reads as under;
"Appeals from Orders:
1. An appeal shall lie from the following orders under the provisions of Section 104, namely:-
xx xx xx xx
(r) an order under R.1, R.2, R.2A, R.4 or R.10 of O.XXXIX. x x x "
It also provides for appeals against several orders made under various orders of C.P.C. R.2 of O.43 makes it clear that the rules of O.41 shall apply, so far as may be, to appeals from orders. Whatever is the procedure laid down, while dealing with appeals O.41 will be applicable to appeals filed under O.43. No distinction whatsoever is made under O.43 as to whether the order is made by the trial or appellate Court. There is a prohibition for filing appeals against orders passed in appeal u/s. 104 (2), C.P.C. The relevant provision is already extracted. S.104 contemplates appeals from orders. Appeals are filed not only against orders made under various sections of the C.P.C. but also against several orders F.A.O.No.309 & O.P.(C)No.3345 of 2012 15 enumerated in O.43 under various Orders of the C.P.C. O.39, Rr.1 and 2 is one of the orders against which an appeal shall lie under O.43, R.1(r) C.P.C. When such an appeal filed against such an order is disposed of, no further appeal lies against such an appellate order u/s. 104(2), C.P.C. Therefore, when for the first time an order is passed under O.39, Rr.1 and 2 by trial or appellate Court, an appeal shall certainly lie u/s. 104(1) of the C.P.C. But against such an order in appeal no further appeal shall lie u/s. 104(2), C.P.C."
12. The very same issue was considered by a learned single Judge of the Allahabad High Court in Mohd. Tahir Khan v. Mohd. Yunus Khan & Ors. (2006 (5) ALJ 393). It was held that an appeal can be filed under section 104(1) read with Order XLIII rule 1 of the Code of Civil Procedure against an order passed by the appellate court under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure and the bar created by sub-section (2) of section 104 will not apply to such an appeal. Paragraphs 43 to 65 of the decision of the learned single Judge in Mohd. Tahir Khan v. Mohd. Yunus Khan & Ors. (supra) which are relevant are extracted below:-
"43. A perusal of the provisions of Cl.(i) of sub- section (1) of S.104 read with R.1 of O.KLIII shows that the said provisions provide for appeal against the orders enumerated in Cls.(a) to (w) of R.1 of O. XLIII of the Code of Civil Procedure. In other words, if an order of the nature covered under any of the Cls. (a) to (w) of R.1 of O. XLIII of the Code of Civil Procedure is passed by a Court then an appeal against such order will lie to the higher Court under S. 104(1)(i) read with O. XLIII, R.1 of the Code of Civil Procedure.
44. Thus, if an order is passed by the trial Court F.A.O.No.309 & O.P.(C)No.3345 of 2012 16 during the pendency of a suit, and such order is covered under any of the Cls. (a) to (w) of R. 1 of O. XLIII of the Code of Civil Procedure, then an appeal will lie against such an order to the Court mentioned in S. 106 of the Code of Civil Procedure.
45. Now suppose an appellate Court while dealing with an appeal filed under S. 104(1) read with O. XLIII, R. 1 of the Code of Civil Procedure against an order passed by the trial Court in a pending suit, passes an order, and such order passed by the appellate Court in such an appeal is covered under any of the Cls. (a) to (w) of R. 1 of O. XLIII of the Code of Civil Procedure, then the question arises as to whether any further appeal against such an order of the appellate Court may be filed under S. 104(1) read with O. XLIII, R. 1 of the Code of Civil Procedure.
46. The answer to the said question is provided by sub-section (2) of S. 104 of the Code of Civil Procedure which lays down that "no appeal shall lie from any order passed in appeal under this section."
47. Hence, the answer to the above question will evidently be in the negative. In other words, in case an appellate Court while dealing with an appeal filed under S. 104(1) read with O. XLIII, R. 1 of the Code of Civil Procedure against an order passed by the trial Court in a pending suit, passes an order, and such order passed by the appellate Court in such an appeal is covered under any of the Cls. (a) to (w) of R. 1 of O. XLIII, then no further appeal under S. 104(1) read with O. XLIII, R. 1 of the Code of Civil Procedure will lie against such an order of the appellate Court in view of the bar created by sub-section (2) of S. 104 of the Code of Civil Procedure.
48. Let us now consider another situation.
Suppose a suit has been finally decided by the trial Court, and a regular first appeal against the decree of the trial Court is pending under S. 96 of the Code of Civil Procedure before the appellate Court.
49. Now suppose the appellate Court, during the pendency of such a regular first appeal filed under S. 96 of the Code of Civil Procedure, passes an order, and such order is covered under any of the Cls. (a) to (w) of R. 1 of O. XLIII of the Code of Civil Procedure. Question arises as to whether against such an order passed by the appellate Court, an appeal can be filed under S. 104(1) F.A.O.No.309 & O.P.(C)No.3345 of 2012 17 read with O. XLII, R. 1 of the Code of Civil Procedure.
50. I am of the opinion that in such a situation, where the appellate Court during the pendency of the regular first appeal before it under S.96 of the Code of Civil Procedure passes an order of the nature mentioned in any of the Cls. (a) to (w) of R. 1 of O. XLIII, then an appeal will lie against such an order under S. 104(1) read with O. XLIII, R. 1 of the Code of Civil Procedure. Such an appeal will lie to the High Court in view of the provisions of S. 106 of the Code of Civil Procedure.
51. As regards the submission made by Sri.Santosh Kumar learned counsel for the petitioner/applicant that in such a situation the appeal may not lie in view of the bar created by sub-section (2) of S.104 of the Code of Civil Procedure, I am unable to accept the same.
52. Sub-section (2) of S.104 of the Code of Civil Procedure, as noted above, provides that "no appeal shall lie from any order passed in appeal under this section."
53. The words "under this section" occurring in sub-section (2) of S.104 of the Code of Civil Procedure are significant. The said words evidently show that the bar created by sub-section (2) of S.104 applies where an appeal has been filed "under this section", i.e. under S.104 of the Code of Civil Procedure, and an order is passed in such an appeal. Accordingly, no further appeal will lie against such an order passed in appeal under S.104 of the Code of Civil Procedure.
54. Sub-section (2) of S.104 of the Code of Civil Procedure, therefore, applies in case an order is passed in an appeal under S.104 of the Code of Civil Procedure. Sub-section (2) of S.104 of the Code of Civil Procedure has no application where an order is passed in an appeal, which has not been filed under S. 104 of the Code of Civil Procedure, but under any other provision of the Code of Civil Procedure.
55. Thus, in case, a regular first appeal has been filed under S.96 of the Code of Civil Procedure, and the appellate Court passes an order during the pendency of such a regular first appeal, then such an order will not be covered under sub-section (2) of S. 104 of the Code of Civil Procedure. This is because, sub-section (2) of S.104 of the Code of Civil Procedure is confined only to F.A.O.No.309 & O.P.(C)No.3345 of 2012 18 an order passed in an appeal filed under S. 104 of the Code of Civil Procedure.
56. Therefore, in case an appellate Court is dealing with a regular first appeal under S. 96 of the Code of Civil Procedure and during the pendency of such an appeal, the appellate Court passes an order which is covered under any of the Cls. (a) to (w) of R. 1 of O. XLIII of the Code of Civil Procedure, then an appeal may be filed against such an order under S. 104(1) read with O. XLIII, R. 1 of the Code of Civil Procedure, and the bar created by sub-section (2) of S. 104 of the Code of Civil Procedure will not apply to such an appeal.
57. The above conclusions are supported by the provisions of S. 106 of the Code of Civil Procedure.
58. A perusal of S. 106 of the Code of Civil Procedure shows that an order covered under S. 104(1) read with O. XLIII, R. 1 of the Code of Civil Procedure may be passed by a Court in the exercise of appellate jurisdiction, and an appeal against such an order will lie to the High Court.
59. The above conclusions may be explained by an example. Suppose an injunction order sought under O. 39, Rr. 1 and 2 of the Code of Civil Procedure is refused by the trial Court during the pendency of the suit before it. An appeal will evidently lie under S. 104(1) read with Cl. (r) of R. 1 of O. XLIII of the Code of Civil Procedure against such order refusing to grant injunction, passed by the trial Court. Such appeal will lie to the Court mentioned in S. 106 of the Code of Civil Procedure.
60. Now suppose the appellate Court while dealing with such an appeal filed under S. 104(1) read with O. XLIII, R. 1, Cl. (r) of the Code of Civil Procedure passes an order allowing the appeal, setting aside the order of the trial Court, and granting injunction in favour of the appellant.
61. Such an order passed by the appellate Court will apparently be covered under S. 104(1) read with O. XLIII, R. 1, Cl. (r) of the Code of Civil Procedure, and therefore, such an order will be appealable under the said provisions. However,in view of the bar created by sub-section (2) of S. 104 of the Code of Civil Procedure, no further appeal may be filed against the said order passed by the appellate Court.
62. Let us now take an example where the trial F.A.O.No.309 & O.P.(C)No.3345 of 2012 19 Court has finally decided the suit, and a regular first appeal under S. 96 of the Code of Civil Procedure has been filed against the decree of the trial Court. During the pendency of such regular appeal, the appellate Court passes an order granting injunction as mentioned in O. 39, Rr. 1 and 2 of the Code of Civil Procedure.
63. It may be noted that an appellate Court, during the pendency of a regular first appeal under S. 96 of the Code of Civil Procedure, has power to grant injunction under O. 39, Rr. 1 and 2 of the Code of Civil Procedure in view of the provisions of sub-section (2) of S. 107 of the Code of Civil Procedure which, inter alia, provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code of Civil Procedure on Courts of original jurisdiction in respect of suits instituted therein.
64. Question arises as to whether an appeal may be filed under S. 104(1) read with O. XLIII, R. 1, Cl. (r) of the Code of Civil Procedure against such order for injunction passed by the appellate Court under O. 39, Rr. 1 and 2 of the Code of Civil Procedure during the pendency of regular first appeal under S. 96 of the Code of Civil Procedure.
65. In view of the conclusions drawn above, an appeal may be filed under S. 104(1) read with O. XLIII, R. 1(r) of the Code of Civil Procedure against such an order of the appellate Court, and the bar created by sub- section (2) of S. 104 of the Code of Civil Procedure will not apply in such a situation."
13. As held by the learned single Judge in Ganesan v. Sadasivan (supra), Order XLIII of the Code of Civil Procedure itself specifically provides for appeals against orders, which are passed only by the appellate court. Section 108 of the Code of Civil Procedure stipulates that the provisions of part VII dealing with appeals from original decrees shall, so far as may be, apply to appeals from F.A.O.No.309 & O.P.(C)No.3345 of 2012 20 appellate decrees and from orders made under the Code or under any special or local law in which a different procedure is not provided. Interpreting section 108 of the Code of Civil Procedure, a Full Bench of this Court held in Fr. Abraham Mathews v. Ittan Pillai (1981 KLT
260) that though the marginal note to it comprehensively speaks of "appellate decrees and orders" a scrutiny of that provision would indicate that the section concerns procedure in appeals from appellate decrees and procedure in appeals from orders made under the Code or under any special or local law in which a special procedure is not provided. The Full Bench also held that the orders envisaged under section 108 may be orders passed by the court in exercise of its original jurisdiction or in exercise of its appellate jurisdiction, while the decrees contemplated by section 108 are decrees passed by a court in exercise of its appellate jurisdiction only. The Full Bench also held that in view of section 100A of the Code of Civil Procedure, no appeal would lie to the Division Bench of this Court under section 5 of the High Court Act from the decision of a learned single Judge of this Court in an appeal filed under section 104 of the Code of Civil Procedure. It can therefore be safely concluded that an appeal will lie from orders of the kind mentioned in Order XLIII, rule 1 of the Code of Civil Procedure, whether such orders are passed by the court exercising original F.A.O.No.309 & O.P.(C)No.3345 of 2012 21 jurisdiction or the court exercising appellate jurisdiction. The only effect of section 104(2) of the Code of Civil Procedure is that a second appeal would not lie from the judgment of the appellate court in an appeal filed under section 104 read with any of the provisions contained in sub-rule (1) of Order XLIII of the Code of Civil Procedure or an interim order passed therein. An appeal is not a common law remedy and the right to appeal is not available if the law does not confer such a right. Section 104 and Order XLIII of the Code of Civil Procedure confer on the litigant the right to prefer an appeal from the orders of the kind mentioned in section 104 read with Order XLIII thereof. When the legislature has deemed it proper to confer the right of appeal on the litigant in respect of the orders mentioned in section 104 of the Code of Civil Procedure read with Order XLIII thereof, in the absence a stipulation to the effect that the right of appeal is confined only to orders passed by the court exercising original jurisdiction, I am of the opinion that the court should not deprive the litigant of that remedy. I accordingly overrule the objection raised by the learned counsel for the respondents to the maintainability of the appeal.
14. That takes me to the question whether the orders passed by the court below merit interference on the merits. As stated earlier, the appellant had in the application for injunction filed by him in the lower F.A.O.No.309 & O.P.(C)No.3345 of 2012 22 appellate court sought a temporary injunction restraining the respondents in the appeal from trespassing into the plaint schedule property or from committing acts of waste therein or from alienating it to third parties or from inducting strangers therein or from altering the nature and lie of the property. A reading of the impugned order discloses that the appellate court did not consider the question whether the respondents are liable to be injuncted from alienating the plaint schedule property to third parties or from inducting strangers therein or from committing acts of waste therein or from altering its nature and lie. The lower appellate court considered only the entitlement of the appellant to an interim order of injunction restraining the respondents from trespassing into the plaint schedule property. Having regard to the decree in O.S.No.144 of 2010 in favour of the respondents, restraining the appellant from trespassing into the property, the said relief was rightly declined by the court below.
15. The appellant had in the affidavit filed by him in support of the application for injunction in the court below stated that respondents are, besides attempting to trespass into the plaint schedule property, attempting to commit acts of waste therein, attempting to induct strangers, to alienate the property and to change the nature and lie of the property. Though the respondents had filed a F.A.O.No.309 & O.P.(C)No.3345 of 2012 23 counter affidavit, all that they stated in reply to the said averments was that the said averments are made only to mislead the court. They had also contended that the trial court had found that they are in possession of the plaint schedule property and on the basis of that finding, O.S.No.144 of 2010 was decreed. The respondents did not in the counter affidavit filed by them in I.A.No.922 of 2012 aver that they have no intension to commit acts of waste in the plaint schedule property or to induct strangers therein or to alienate the property or to change the nature and lie of the property. The lower appellate court did not take note of the averments in I.A.No.922 of 2012 to the effect that the respondents are attempting to commit acts of waste in the property and to alienate the property and to alter the nature and lie of the property and to induct strangers therein. By the impugned order, after holding that the appellant is not entitled to an interim order of injunction restraining the respondent from trespassing into the plaint schedule property, the lower appellate court vacated the interim order and dismissed the application without considering the question whether the appellant is entitled to an order of injunction restraining the respondents from committing acts of waste in the plaint schedule property or from altering the nature and lie of the plaint schedule property or from inducting strangers therein or from alienating it to F.A.O.No.309 & O.P.(C)No.3345 of 2012 24 third parties. Having regard to the fact that immediately prior to the suit, the first defendant in O.S.No.239 of 2010 had sold portions of the suit property to defendants 2 to 5, I am of the opinion that until the disposal of the appeals, the respondents should be restrained from further alienating the plaint schedule property so as to avoid creation of third party rights which will only delay the disposal of the appeals. Likewise, I am also of the opinion that the respondents should be restrained by an interim order of injunction from committing acts of waste in the plaint schedule property or from altering the nature and lie of the plaint schedule property or from inducting third parties into possession. Otherwise, in the event of the appellant succeeding in lower appellate court, his rights will be seriously prejudiced.
16. I shall now consider whether the order passed by the lower appellate court on I.A.No.920 of 2012 in A.S.No.151 of 2012 declining to stay the operation of the decree of injunction passed against the appellant in this appeal by the trial court, which is under challenge in O.P.(C) No.3345 of 2012, merits interference. The trial court, on analysis of the evidence, oral and documentary available in the case held that the plaintiffs in O.S.No.144 of 2010 are in possession of the plaint schedule property. The appellant's contention that he was in possession and enjoyment of the plaint schedule property was F.A.O.No.309 & O.P.(C)No.3345 of 2012 25 negatived. The Will propounded by him was also not accepted. O.S. No.293 of 2010 filed by him was dismissed. In such circumstances and in view of my finding that the respondents in F.A.O.No.309 of 2012 are liable to be restrained by an interim order of injunction from committing acts of waste in the plaint schedule property or from altering the nature and lie of the plaint schedule property or from alienating it or from inducting third parties into possession till the appeals in the court below are disposed of, I am of the opinion that no interference is called for with the order on I.A.No.920 of 2012 in A.S.No.151 of 2012, which is impugned in O.P.(C)No.3345 of 2012.
For the reasons stated above I hold that there is no merit in O.P. (C)No.3345 of 2012. O.P.(C)No.3345 of 2012 fails and is accordingly dismissed. F.A.O.No.309 of 2012 is allowed and the respondents are restrained by an interim order of injunction from committing acts of waste in the property scheduled to the plaint in O.S.No. 293 of 2010 or from inducting strangers therein or from alienating the said property or from altering its nature and lie until the disposal of A.S.No.152 of 2012 on the file of the Court of the District Judge of Kottayam. The lower appellate court shall endeavour to dispose of the appeals jointly, expeditiously and in any event within an outer limit of four months from the date of receipt of a certified copy of this judgment, F.A.O.No.309 & O.P.(C)No.3345 of 2012 26 untrammelled by the observations and findings in the impugned orders. Registry is directed to communicate a copy of this judgment to the lower appellate court.
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P.N.RAVINDRAN JUDGE /True copy/ P.A. to Judge vpv