# Bevis and Co v. Ram Behari and

- **Citation:** First Appeal From Order No. 873 of 2013
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-05
- **Case number:** First Appeal From Order No. 873 of 2013
- **Bench:** Rakesh Tiwari, Anil Kumar Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bevis-and-co-v-ram-behari-and-42887
- **Pages:** 3

## Headnote

Code of Civil Procedure.- Order 43 Rule
1(r) Appeal against order passed under
Order XXXIX rule 3-issue notice on
injunction
Application-held-not
appealable-appeal dismissed on ground
of maintainability.

Held: Para-9
Therefore,
in
view
of
the
legal
proposition referred to above, we hold
that the impugned order is an order
under Rule 3 of Order 39 C.P.C. and no
appeal lies against that order under
Order 43, Rule 1(r) of the Code of Civil
Procedure.

Case Law discussed:
AIR (88) 1951 Allahabd 8.

## Text

1 All Ram Das Singh and another Vs. Duli Chand
483
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2013

BEFORE
THE HON'BLE RAKESH TIWARI, J.
HON'BLE ANIL KUMAR SHARMA, J.

First Appeal From Order No. 873 of 2013

Amrik Singh

...Petitioner
Versus
M/S Bal Ji Rice Mills and Ors...Respondents

Counsel for the Petitioner:
Sri B.B. Paul; Sri A.P. Paul

Counsel for the Respondents:
-----
Code of Civil Procedure.- Order 43 Rule
1(r) Appeal against order passed under
Order XXXIX rule 3-issue notice on
injunction
Application-held-not
appealable-appeal dismissed on ground
of maintainability.

Held: Para-9
Therefore,
in
view
of
the
legal
proposition referred to above, we hold
that the impugned order is an order
under Rule 3 of Order 39 C.P.C. and no
appeal lies against that order under
Order 43, Rule 1(r) of the Code of Civil
Procedure.

Case Law discussed:
AIR (88) 1951 Allahabd 8.

(Delivered by Hon'ble Anil Kumar Sharma, J.)

F.A.F.O. No. 873 of 2013
Amrik Singh

Versus

M/s Bala Ji Rice Mills, Bandda, Road,
Khutar,
Tehsil
Puwayan,
District
Shahjahanpur (U.P.) through its partner
Rakesh Kumar Sharma and others

Counsel for the appellant: Sri B. B. Paul

CORAM:
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.

1. This appeal challenges the order
dated 8.3.2013 passed by Civil Judge
(Senior Divison) Shahajahanpur in O. S.
no. 222 of 2013, whereby instead of
granting exparte ad interim, notices have
been
issued
to
the
defendantsrespondents. The impugned order reads as
under:

" 8-3-2013

izkFkZuk i= 8x e; 'kiFk i= 9x ij oknh ds
fo}ku vf/koDrk dks ,di{kh; :i ls lqukA

oknh dh izkFkZuk gS fd vLFkk;h fu"ks/kkKk bl
vk'k; dh tkjh dh tkos fd izfroknhx.k fey esllZ
ckyk th jkbl fey dh rFkk mldk leLr e'khus
Hkou vkfn dh fcdzh lafonk vkfn djus ls okn ds
yEcu dky esa ckt jgsA

oknh ds o}ku vf/koDrk dks lqukA pwafd
nkf[ky vfHkys[kh; lk{; ls oknh dk ,d{kh; :i ls
izFke n`"V;k ekeyk curk izrhr ugha gks jgk gS ftl
dkj.k izfroknh x.k dks Hkh lquk tkuk vko';d gSaA

vkns'k

01& izfroknhx.k dks uksfVl tkjh gksA oknh
vko';d iSjoh djsA

02& i=koyh izkFkZuki= 8x ij lquokbZ gsrq
fnukad 19-03-2013 dks is'k gksA "

2. Learned counsel for the appellant
has vehemently argued that through the
impugned order the learned trial court
without discussing the facts of the case
and evidence adduced by the plaintiff has
484 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
declined to grant ad interim injunction, so
it has grossly erred in not granting exparte
ad interim injunction order in favour of
the plaintiff and against the defendantsrespondents.

3. At the very outset we requested
the learned counsel for the appellant to
address the Court about maintainability of
the appeal. In support of his contention he
has placed reliance on the case of H.
Bevis and Co. Vs. Ram Behari and
others AIR (88) 1951 Allahabd 8. We
have carefully perused the report of this
case and find that it does not at all support
the contention of the appellant. In this
case there was difference of opinion
between the two Hon'ble Judges of the
division bench of this Court on the issue
of maintainability of the appeal against
the order issuing notices to defendants on
application for ad interim injunction and
the matter was referred to third Hon'ble
Judge, who took the view that order
refusing to issue an ad interim injunction
as allowed by Rule 3 of Order 39 of Code
of Civil Procedure is not appeal able.
Thus, by majority view it was held that
appeal against the aforesaid order is not
maintainable. However, in the peculiar
facts and circumstances of the case, the
Court treated the appeal as civil revision
and ad interim injunction order was
granted.

4. Order 39, C.P.C. lays down the
provision of grant of temporary injunction
and interlocutory orders. Under Order 39
Rule 1, C.P.C. the court is empowered to
issue a temporary injunction in any suit.
Similarly under Rule 2 the court has been
given a power for issue of temporary
injunction to restrain the repetition or
continuance of breach in a suit. Rule 2A,
C.P.C.
lays
down
consequences
of
disobedience of breach of injunction and
Rule 3 of Order 39, C.P.C. empowers the
court to direct notice to opposite party
where it appears to the court that it is
necessary to do so before granting the
applicant temporary injunction.

5. The relevant portion of Order 43,
Rule 1, C.P.C. as well as Sub-rule (r) is
quoted below : --

"1. Appeals from orders.-- An appeal
shall lie from the following orders under
the provisions of Section 104, namely :--

(a) .....

(r) an order under Rule 1, Rule 2,
Rule 2A, Rule 4 or Rule 10 of Order
XXXIX;"

6. From the above Sub-clause (r) it
is apparent that an appeal lies only against
an order under Rule 1, Rule 2, Rule 2A,
Rule 4, and Rule 10 of Order 39, C.P.C.
The mere order issuing notice on an
application for grant of an injunction
clearly comes under the provisions of
Rule 3 of Order 39. An order under Rule
3 of Order 39 is not appealable under
Order 43, Rule l(r). It is, therefore, clear
that whenever a court passes an order for
issue
of
notice
on
an
injunction
application, this order is not appealable
under
Order
43,
Rule
1(r),
Civil
Procedure Code.

7. In the instant case, what the trial
Court did is that it neither passed an ex
parte injunction in favour of the plaintiff
nor refused to grant it. The trial Court on
the basis of material placed before it
opined that exparte there appears to be no
prima facie case in favour of the plaintiff
so without notice to the defendants it
1 All Amrik Singh Vs. M/S Bal Ji Rice Mills and others
485
would not be just and proper to grant an
ex parte temporary injunction. Therefore,
the trial Court chose to proceed under
Rule 3 of Order 39 of the Code. Rule 3
reads;

"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.

It is also required in the provision of
this rule 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."

8. In Lakhai Vs. Ram Niwas AIR
1987 All 345, it was held that (para 7) : .

"The mere order issuing notice on an
application for grant of an injunction
clearly comes under the provisions of
Rule 3 of Order 39. An order under Rule
3 of Order 39 is not appealable under
Order 43, Rule 1(r)."

9. Therefore, in view of the legal
proposition referred to above, we hold
that the impugned order is an order under
Rule 3 of Order 39 C.P.C. and no appeal
lies against that order under Order 43,
Rule 1(r) of the Code of Civil Procedure.

10. Learned counsel for the appellant
has valiantly tried to support the plaintiff's
case for grant of ad interim injunction and his
prima facie case in support thereof, but we
refrain to dwell upon these issues, as the
matter is still sub-judice before the learned
trial Court and any observation made by us
on merits of the case may adversely affect
case of any party. However, suffice it to say
that the learned counsel for the appellant
could not place before us any document,
except the affidavit of the plaintiff which was
filed in the trial Court in support of his
contention. The legal position noted above
also rules out the contention of the learned
counsel for the appellant that the impugned
order falls within the ambit of Rule 1 of
Order 39 of Code of Civil Procedure.

11. In view of the above, we find
that the instant appeal is not maintainable
and is accordingly dismissed in limine.

12. Let certified copy of the order be
sent to the court concerned within a week.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2013

BEFORE
THE HON'BLE THE HON'BLE SUDHIR
AGARWAL,J.

Second Appeal No. 1003 of 2006

Shyoraj Singh and others ...Appellants
Versus
Zahir Ahmad and others ...Respondents

Counsel for the Appellants:
Sri Namwar Singh, Sri S.N. Mishra
Sri Sanjiv Singh, Sri Lalit Kumar

Counsel for the Respondents:
Sri R.K. Yadav, Sri Mohd. Arif
Sri Sharda Madhyan

Transfer of Property Act, 1882-Section52- Doctrine of 'lis pendens'- explained-