# Chirag Aashiana Pvt. Ltd. A-4 v. Smt. Santosh & Anr. 992 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 11 ILRA 991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-20
- **Case number:** Matters Under Article 227 No. 9397 of 2025
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chirag-aashiana-pvt-ltd-a-4-v-smt-santosh-anr-992-indian-law-reports-allahabad-54817
- **Pages:** 27

## Headnote

Whether against an order granting ex-parte
injunction, an appeal can be filed under Order
XLIII Rule 1(r) of C.P.C. and further whether
appeal can be filed only after the expiry of six
months from the date of order granting ex-parte
temporary injunction

Head Notes
The Constitution of India, 1950-Article
227; The Code of Civil Procedure, 1908-
Order XLI Rule 1 (r), Order XXXIX Rule 1,
2, 3 & 4; The Limitation Act, 1963-Article
116- That an appeal will lie under Order
XLIII Rule 1(r) against an order of exparte temporary injunction passed by trial
court in exercise of powers under Rule 1
and 2 of Order XXXIX C.P.C. Party
aggrieved can also approach the same
court under Rule 4 of Order XXXIX, if he
so desires- An appeal can be filed under
Order XLIII Rule 1(r) C.P.C. against an
order of ex-parte temporary injunction by
the party aggrieved with the order of exparte temporary injunction within the
limitation period as provided by the
Limitation Act, 1963- Petition is disposed
of with liberty to the petitioner to avail
the remedy as available to him under law.

Held- No relief can be granted to the petitioner
in view of availability of alternative remedy of
appeal under Order XLIII Rule 1(r) C.P.C. as
well as to file an application under Order XXXIX
Rule 4 C.P.C. (E-15)

Case Law Cited
Re Santosh Kumar Ghosh v. State. AIR 1983 Col
250; Saraju Prashad Singh Vs. Gangaprosad
Shah and Others; MANU/WB/0070/1951 : AIR
1951 Cal 446; L.D. Meston School Society Vs.
Kashi Nath Misra; MANU/UP/0389/1950; Roomi
Prasad Vs. IIInd Additional District Judge, Etah
and Others; 1998 (34) ALR 366; Ram Dhani &
others v. Raja Ram and others; 2011 (5) ADJ
780; Astral Traders v. Hazi Mohammad,
MANU/JK/0013/1982 (FB); H. Bevis And Co. vs
Ram Behari And Ors. reported in AIR1951ALL8;
A. Venkatasubbiah Naidu vs S. Chellappan And
Ors reported in (2000) 7 SCC 695; Zila Parishad
Budaun Vs. Brahma Rishi Sharma reported in
1969 SCC On Line All 237; Mukund Deo (Dead)
represented by his legal representatives Kasibai
and others vs. Mahadeo and others reported in
AIR1965 SC 703; Garikapatti Veeraya vs N.
Subbiah Choudhury; 1957 AIR 540; Vijay
Prakash D. Mehta and another vs. Collector of
Customs (Preventive), Bombay; (1988) 4 SCC
402; eth Nand Lal and Another vs. State of
Haryana and Others; AIR 1980 Supreme Court
2097; The Anant Mills Co. Ltd. v. State of
Gujarat and Others; AIR 1975 Supreme Court
1234; Ram Singha Vs. Shankar Dayal; (1928)
I.L.R. 50 All. 965 (F.B.).; Ganga Bai v. Vijay
Kumar; AIR 1974 SC 1126; M. Ramanarain Pvt.
Ltd. Vs. State of Trading Corporation of India
Ltd.; (1983) 3 SCC 75; Nagendra Nath Vs.
Suresh Chandra; AIR 1932 PC 165: 59 IA 283;
Rajendraprasad R. Singh vs The Municipal
Corpn. Of Gr. Bombay; AIR 2003 BOM 392;
Manohar
Lal
Vs.
Seth
Hiralal
MANU/SC/0056/1961:
AIR1962SC527;
A.
Venkatasubbiah Naidu vs S. Chellappan And Ors
reported in (2000) 7 SCC 695; India Glycols
Limited Vs. Radico Khaitan Limited reported in
2021 SCC OnLine All 516; Rinku Maheswari & 4
others Vs. Snehlata Maheshwari and 6 others in
Matters Under Article 227 No. 5356 of 2021
decided on 21.10.2021; Gurmej Singh and
others Vs. Ranjit Kaur and others reported in
2020 SCC OnLine All 1531;

List of Acts

List of Keywords
Order XLI Rule 1 (r); Order XXXIX Rule 1, 2, 3 &
4; Remedy of Appeal; Against order of ex-parte
temporary injunction.

Case Arising From
Plaintiff-respondents filed an application for
interim injunction under Order XXXIX Rule 1 and
2 of C.P.C. claiming interim injunction. The trial
court i.e. Civil Judge (Senior Division) Gautam
Buddh Nagar by order dated 16.12.2024
granted ex-parte injunction directing both the
parties to maintain status quo till next date of
listing.

Appearances for Parties
11 All. Chirag Aashiana Pvt. Ltd. A-4 Vs. Smt. Santosh & Anr.
993
Counsel for Petitioner(s) : Nipun Singh, Parijat
Srivastava
Counsel for Respondent(s) :

## Text

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11 All. Chirag Aashiana Pvt. Ltd. A-4 Vs. Smt. Santosh & Anr.
991
dated 31.10.1994 is untenable inasmuch as
that very order stood set aside in appeal and
the matter was remanded for fresh
determination. Once the earlier order was
wiped out and the field became open for reconsideration, the doctrine of res judicata
has no application. The appellate authority,
therefore, cannot be said to have exceeded
its jurisdiction merely because it examined
the Will Deeds or the title of Pradeep Singh
while deciding Appeal No.57.

27. The argument that the Will Deed was
not produced or considered is factually
incorrect, as the impugned order specifically
refers to the Will Deed and the manner in
which the rights of respondents nos.1 to 3
were recognized by the mutation authorities.
The petitioner has failed to show that these
findings are either perverse or based on no
evidence.

28. The submission that the Will Deed
should be ignored under Sections 5(6) and
5(8) of the Ceiling Act on account of its
execution during the pendency of ceiling
proceedings also does not aid the petitioner.
The appellate authority has not treated the Will
Deed as a device to defeat the Ceiling Act but
has relied upon it, along with mutation entries,
only to ascertain the existing title of Pradeep
Singh over the land at the relevant time. This
Court cannot re-appreciate such findings in
writ jurisdiction unless they suffer from
manifest illegality or perversity, none of which
have been demonstrated by the petitioner.

29. On the contrary, the materials placed
suggest that the land had already been treated
as
belonging
to
Pradeep
Singh
and
respondents nos.1 to 3 much before the final
ceiling
calculations
and
the
appellate
authoritys reliance upon those materials
cannot be faulted. It also deserves notice that
the petitioner has failed to establish any
substantial injury or prejudice occasioned to
the State by the impugned order. The surplus
land was recalculated and the deficiency, if
any, was duly adjusted from other holdings of
the tenure holder. The prolonged delay and
administrative inaction in filing this writ
petition further weaken the petitioners claim
for equitable relief under Article 226
Constitution of India.

30. The extraordinary jurisdiction of this
Court is not meant to rectify belated
administrative lapses, especially when the
impugned order is supported by cogent
reasoning and does not infringe any statutory
mandate.

31. In view of the above considerations,
this Court finds no illegality, perversity,
jurisdictional error, or violation of statutory
provisions in the appellate order dated
14.10.1999. The findings recorded therein are
based on proper appreciation of the record,
independently supported by revenue entries
and mutation orders and do not warrant
interference under Article 226 of the
Constitution of India.

32. The writ petition is accordingly,
dismissed.

33. No order as to costs.
----------
(2025) 11 ILRA 991
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2025

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters Under Article 227 No. 9397 of 2025

Chirag Aashiana Pvt. Ltd. A-4 ...Petitioner
Versus
Smt. Santosh & Anr. ...Respondents
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Nipun Singh, Parijat Srivastava

Counsel for the Respondents:

Issue for Consideration
Whether against an order granting ex-parte
injunction, an appeal can be filed under Order
XLIII Rule 1(r) of C.P.C. and further whether
appeal can be filed only after the expiry of six
months from the date of order granting ex-parte
temporary injunction

Head Notes
The Constitution of India, 1950-Article
227; The Code of Civil Procedure, 1908-
Order XLI Rule 1 (r), Order XXXIX Rule 1,
2, 3 & 4; The Limitation Act, 1963-Article
116- That an appeal will lie under Order
XLIII Rule 1(r) against an order of exparte temporary injunction passed by trial
court in exercise of powers under Rule 1
and 2 of Order XXXIX C.P.C. Party
aggrieved can also approach the same
court under Rule 4 of Order XXXIX, if he
so desires- An appeal can be filed under
Order XLIII Rule 1(r) C.P.C. against an
order of ex-parte temporary injunction by
the party aggrieved with the order of exparte temporary injunction within the
limitation period as provided by the
Limitation Act, 1963- Petition is disposed
of with liberty to the petitioner to avail
the remedy as available to him under law.

Held- No relief can be granted to the petitioner
in view of availability of alternative remedy of
appeal under Order XLIII Rule 1(r) C.P.C. as
well as to file an application under Order XXXIX
Rule 4 C.P.C. (E-15)

Case Law Cited
Re Santosh Kumar Ghosh v. State. AIR 1983 Col
250; Saraju Prashad Singh Vs. Gangaprosad
Shah and Others; MANU/WB/0070/1951 : AIR
1951 Cal 446; L.D. Meston School Society Vs.
Kashi Nath Misra; MANU/UP/0389/1950; Roomi
Prasad Vs. IIInd Additional District Judge, Etah
and Others; 1998 (34) ALR 366; Ram Dhani &
others v. Raja Ram and others; 2011 (5) ADJ
780; Astral Traders v. Hazi Mohammad,
MANU/JK/0013/1982 (FB); H. Bevis And Co. vs
Ram Behari And Ors. reported in AIR1951ALL8;
A. Venkatasubbiah Naidu vs S. Chellappan And
Ors reported in (2000) 7 SCC 695; Zila Parishad
Budaun Vs. Brahma Rishi Sharma reported in
1969 SCC On Line All 237; Mukund Deo (Dead)
represented by his legal representatives Kasibai
and others vs. Mahadeo and others reported in
AIR1965 SC 703; Garikapatti Veeraya vs N.
Subbiah Choudhury; 1957 AIR 540; Vijay
Prakash D. Mehta and another vs. Collector of
Customs (Preventive), Bombay; (1988) 4 SCC
402; eth Nand Lal and Another vs. State of
Haryana and Others; AIR 1980 Supreme Court
2097; The Anant Mills Co. Ltd. v. State of
Gujarat and Others; AIR 1975 Supreme Court
1234; Ram Singha Vs. Shankar Dayal; (1928)
I.L.R. 50 All. 965 (F.B.).; Ganga Bai v. Vijay
Kumar; AIR 1974 SC 1126; M. Ramanarain Pvt.
Ltd. Vs. State of Trading Corporation of India
Ltd.; (1983) 3 SCC 75; Nagendra Nath Vs.
Suresh Chandra; AIR 1932 PC 165: 59 IA 283;
Rajendraprasad R. Singh vs The Municipal
Corpn. Of Gr. Bombay; AIR 2003 BOM 392;
Manohar
Lal
Vs.
Seth
Hiralal
MANU/SC/0056/1961:
AIR1962SC527;
A.
Venkatasubbiah Naidu vs S. Chellappan And Ors
reported in (2000) 7 SCC 695; India Glycols
Limited Vs. Radico Khaitan Limited reported in
2021 SCC OnLine All 516; Rinku Maheswari & 4
others Vs. Snehlata Maheshwari and 6 others in
Matters Under Article 227 No. 5356 of 2021
decided on 21.10.2021; Gurmej Singh and
others Vs. Ranjit Kaur and others reported in
2020 SCC OnLine All 1531;

List of Acts

List of Keywords
Order XLI Rule 1 (r); Order XXXIX Rule 1, 2, 3 &
4; Remedy of Appeal; Against order of ex-parte
temporary injunction.

Case Arising From
Plaintiff-respondents filed an application for
interim injunction under Order XXXIX Rule 1 and
2 of C.P.C. claiming interim injunction. The trial
court i.e. Civil Judge (Senior Division) Gautam
Buddh Nagar by order dated 16.12.2024
granted ex-parte injunction directing both the
parties to maintain status quo till next date of
listing.

Appearances for Parties
11 All. Chirag Aashiana Pvt. Ltd. A-4 Vs. Smt. Santosh & Anr.
993
Counsel for Petitioner(s) : Nipun Singh, Parijat
Srivastava
Counsel for Respondent(s) :

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard learned counsel for the
petitioner and perused the record.

2. This petition has been filed for the
following reliefs:-

"i. Direct the learned Civil Judge
(Senior Division), Gautam Buddh Nagar to
decide the application 18Ga filed by the
defendant/petitioner under order 39 Rule 4
of C.P.C. dated 07.04.2025 in Original Suit
No.2105 of 2024 (Santosh Vs. Chirag
Aashiana), expeditiously, within a time
bound period as may be directed by this
Hon'ble Court preferably within a period of
one month.

ii. Issue any other such order or
directions, as this Hon'ble Court may deem
fit and proper under the facts and
circumstances of the case.

iii. Set aside the ex-parte order
dated 16.12.2024 passed by the learned
Civil Judge (Senior Division), Gautam
Buddh Nagar."

3. Sri Nipun Singh, learned counsel
for the petitioner submitted that he confines
his prayer to decide and consider the prayer
No. 3 made in the writ petition. The prayer
No. 3 in the writ petition is to set aside the
ex-parte injunction order dated 16.12.2024
passed by learned Civil Judge (Senior
Division), Gautam Buddh Nagar.

4. Brief facts of the case are that
plaintiff-respondents
instituted
Original
Suit No. 2105 of 2024 (Santosh and
another
Vs.
Chirag
Aashiana)
on
16.12.2024 in the court of Civil Judge
(Senior Division) Gautam Buddh Nagar for
the relief of declaration that sale deed dated
09.05.2008 is not binding on the plaintiffrespondents. A further prayer for injunction
restraining the defendant from interfering
with the possession of the plaintiff over the
land in dispute was made. The plaintiffrespondents also filed an application for
interim injunction under Order XXXIX
Rule 1 and 2 of C.P.C. claiming interim
injunction. The trial court i.e. Civil Judge
(Senior Division) Gautam Buddh Nagar by
order dated 16.12.2024 granted ex-parte
injunction directing both the parties to
maintain status quo till next date of listing.
Hence the present writ petition.

5. When the learned counsel for the
petitioner
was
confronted
with
the
proposition of law that petitioner had an
alternative remedy of filing an appeal
against an ex-parte order of injunction and
that he could have also filed an application
under Rule 4 of Order XXXIX of C.P.C.
for setting aside the order of ex-parte
injunction.
Learned
counsel
for
the
petitioner submitted that no appeal could be
filed against an ex-parte order of injunction
as under Rule 1(r) of Order XLIII, appeal is
provided only against orders passed under
Rule 1, 2, 2(A), 4 and 10 of Order XXXIX
of C.P.C. No appeal can be filed against an
order passed under Rule 3 of Order XXXIX
of C.P.C. It has also been contended by
counsel for the petitioner that in view of the
judgment of this Court in case of Gurmej
Singh and others Vs. Ranjit Kaur and
others reported in 2020 SCC OnLine All
1531, an appeal cannot be filed against an
order of ex-parte injunction before the
expiry of six months from the date of the
passing of the order of the ex-parte
994 INDIAN LAW REPORTS ALLAHABAD SERIES
injunction. It has been further contended by
learned counsel for the petitioner that the
order passed in the case of Gurmej Singh
(supra) has been followed by this Court in
subsequent judgments i.e. India Glycols
Limited Vs. Radico Khaitan Limited
reported in 2021 SCC OnLine All 516 and
in the case of Rinku Maheswari & 4
others Vs. Snehlata Maheshwari and 6
others in Matters Under Article 227 No.
5356 of 2021 decided on 21.10.2021.
Learned counsel for the petitioner relied
upon the judgment of the Supreme Court in
the case of A. Venkatasubbiah Naidu vs
S. Chellappan And Ors reported in (2000)
7 SCC 695 wherein the Hon'ble Supreme
Court has taken a view that where the
mandate of Order XXXIX Rule 3(A) of
C.P.C. has been flouted, the aggrieved
party, would be entitled to the right of
appeal notwithstanding the pendency of the
application for grant or vacation of a
temporary injunction, against the order of
ex-parte injunction. He however stated that
the judgment reported in (2000) 7 SCC 695
would not be of any help as Rule 3(A)
C.P.C. is no longer applicable in the State
of U.P. as it stands deleted by the
Notification
No.
103/IV-h-360
dated
03.02.1981 issued by High Court in
exercise of its powers under Section 122 of
the C.P.C.

6. Learned Standing Counsel has
submitted
that
temporary
injunction
whether ex-parte or after hearing the parties
is granted under Rule 1 and 2 of Order
XXXIX C.P.C. Order XLIII Rule 1(r)
C.P.C. provides for an appeal against an
order granted under Rule 1 and 2 of Order
XXXIX, therefore, appeal against exparte
temporary injunction order is maintainable.
It has also been submitted by learned
Standing Counsel that right of appeal being
statutory in nature cannot be interpreted to
curtail the right unless, provided by the
statute granting right of appeal.

7. The question which arises therefore,
for the consideration of this Court in this
petition is as to whether against an order
granting ex-parte injunction, an appeal can
be filed under Order XLIII Rule 1(r) of
C.P.C. and further whether appeal can be
filed only after the expiry of six months
from the date of order granting ex-parte
temporary injunction as held in case of
Gurmej Singh and others (supra).

8.
Before
considering
the
aforementioned questions, it would be
relevant to consider the nature of injunction
orders passed by the civil courts and the
power of the appellate court under Order
XLIII Rule 1 of C.P.C.

9. According to Wade & Forsyth:
Administrative Law (2009), page 474,
injunction is the standard remedy of private
law for forbidding the commission of some
unlawful act e.g. a tort or a breach of
contract. Its sanction is imprisonment or
fine for contempt of court, or attachment of
property. Historically, it is an equitable
remedy (since it derives from the former
Courts of Chancery), and accordingly it has
discretionary character. Now however even
in England, it is statutory. In India,
undeniably injunction is statutory in nature.

10. Injunctions are of various types.
They may be classified as:-

(i) temporary or perpetual

(ii) prohibitory or mandatory

(iii) negative or positive

(iv) ad-interim or interim etc.
11 All. Chirag Aashiana Pvt. Ltd. A-4 Vs. Smt. Santosh & Anr.
995

11.
Before
considering
the
submissions made by counsel for the
petitioner, it would appropriate to look into
the statutory provisions relating to grant of
injunction. Chapter VI of Specific Relief
Act, 1963 deals with injunctions. The
relevant Sections of Specific Relief Act,
1963 are quoted as under:-

"36.
Preventive
relief
how
granted.-Preventive relief is granted at
the discretion of the court by injunction,
temporary or perpetual.

37. Temporary and perpetual
injunctions. - (1) Temporary injunctions
are such as are to continue until a specific
time, or until the further order of the court,
and they may be granted at any stage of a
suit, and are regulated by the Code of Civil
Procedure, 1908 (5 of 1908).

(2) A perpetual injunction can
only be granted by the decree made at the
hearing and upon the merits of the suit; the
defendant is thereby perpetually enjoined
from the assertion of a right, or from the
commission of an act, which would be
contrary to the rights of the plaintiff.

12. Sections 94 of the C.P.C. provides
for grant of temporary injunction and the
same is being reproduced as under:-

"94. Supplemental proceedings.
In order to prevent the ends of justice from
being defeated the Court may, if it is so
prescribed, -

(a) issue a warrant to arrest the
defendant and bring him before the Court
to show cause why he should not give
security for his appearance, and if he fails
to comply with any order for security
commit him to the civil prison;

(b) direct the defendant to furnish
security to produce any property belonging
to him and to place the same at the disposal
of the Court or order the attachment of any
property;

(c) grant a temporary injunction
and in case of disobedience commit the
person guilty thereof to the civil prison and
order that his property be attached and
sold;

(d) appoint a receiver of any
property and enforce the performance of
his duties by attaching and selling his
property;

(e) make such other interlocutory
orders as may appear to the Court to be
just and convenient."

13. Order XXXIX of C.P.C. relates to
temporary injunctions and interlocutory
orders to be passed in a suit. Order XXXIX
of C.P.C. was amended by Amending Act of
104 of 1976 w.e.f 01.02.1977 by which Rule
2A, proviso to Rule 3 and Rule 3(A) were
added by the legislature by the Amending
Act. It would be useful to consider both the
amended as well as unamended provisions of
Order XXXIX of C.P.C. in order to decide
whether an appeal will lie against an ex-parte
order of injunction granted by the trial court.
Un-amended Order XXXIX of C.P.C.is
quoted as under:-

" Order XXXIX

Temporary
Injunctions
and
Interlocutory orders

Temporary Injunctions

1. Where in any suit it is proved
by affidavit or otherwise-
996 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) that any property in dispute in
a suit is in danger of being wasted,
damaged or alienated by any party to the
suit, or wrongfully sold in execution of a
decree, or

(b) that the defendant threatens,
or intends, to remove or dispose of his
property with a view to defrauding his
creditors,

the Court may by order grant a
temporary injunction to restrain such act,
or make such other order for the purpose of
staying
and
preventing
the
wasting,
damaging, alienation, sale, removal or
disposition of the property or disposition of
the property as the Court thinks fit, until
the disposal of the suit or until further
orders.

2. (1) In any suit for restraining
the defendant from committing a breach of
contract or other injury of any kind,
whether compensation is claimed in the suit
or not, the plaintiff may, at any time after
the commencement of the suit, and either
before or after judgment, apply to the
Court for a temporary injunction to
restrain the defendant from committing the
breach of contract or injury complained of,
or any breach of contract or injury of a like
kind arising out of the same contract or
relating to the same property or right.

(2) The Court may by order grant
such injunction, on such terms as to the
duration of the injunction, keeping an
account, giving security, or otherwise, as
the Court thinks fit.

(3) In the case of disobedience,
or of breach of any of the terms, the Court
granting the injunction may order the
property of the person guilty of such
disobedience or breach to be attached, and
may also order such person to be detained
in the civil prison for a term not exceeding
six months, unless in the meantime the
Court directs his release.

(4) No attachment made under
this rule shall remain in force for more
than one year, at the end of which time, if
the disobedience or breach continues, the
property attached may be sold, and out of
the proceeds, the Court may award such
compensation as it thinks fit and shall pay
the balance, if any, to the party entitled
thereto.

3. 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.

4. Any order for an injunction
may be discharged, or varied, or set aside
by the Court, on application made thereto
by any party dissatisfied with such order.

5........10..."

14. By Section 86 of Act No. 104 of
1976 proviso was added to Rule 3 of Order
XXXIX and a new rule i.e. Rule 3(A) was
also added by the said amendment which
came in effect from 01.02.1977. The
amended Rule 3 and 3(A) of Order XXXIX
of C.P.C. is quoted as under:-

"Rule
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
11 All. Chirag Aashiana Pvt. Ltd. A-4 Vs. Smt. Santosh & Anr.
997
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.

Rule 3-A: 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. "

15. From reading the provisions of
statute quoted above, it is clear that a
perpetual injunction can only be granted by
the decree made at the hearing and upon
merits of the suit, the defendant is thereby
perpetually enjoined from the assertion of
right or from commission of an act, which
would be contrary to the rights of a
plaintiff. Thus, perpetual or permanent
injunction is granted at the conclusion of
the suit, appeal or other proceeding and are
based on judgment, decree or final order
and
operates
against
the
defendant
permanently or perpetually on merits of the
case. Permanent perpetual injunction are
regulated by Specific Relief Act, 1963.
(Sections 36 to 42 of Specific Relief Act,
1963).

16. Temporary injunctions are such as
to continue until a specified time, or until
the further orders of the court and they may
be granted any stage of a suit. They are
regulated by the Code of Civil Procedure
i.e. Section 94 of C.P.C. and Order XXXIX
of C.P.C. Admittedly, preliminary, interim
or
interlocutory
injunction
operates
pendente lite i.e. during pendency of the
suit, appeal or proceedings or for a
specified period. It does not conclude the
right and liabilities of the parties finally,
and are regulated by the provisions of
Order XXXIX of C.P.C. Section 36 of the
Specific Relief Act, 1963, envisages grant
of preventive relief by way of temporary
injunctions by a Court at its discretion.
Sub-section (1) of Section 37 of that Act
provides that such temporary injunctions
may continue until a specified time or until
further orders of the Court and may be
granted at any stage of the suit, as regulated
by the Code. Section 94(c) of the Code says
that in order to prevent ends of justice from
being defeated, the Court, if it is so
prescribed by rules, may grant a temporary
injunction. Rules 1, 2, 3, 3A and 4 of Order
XXXIX of the Code enable the initial grant
998 INDIAN LAW REPORTS ALLAHABAD SERIES
and the subsequent affirmation, setting
aside, varying or modifying of the interim
order of temporary injunctions. Section 151
of the Code enables the Court to grant
temporary injunctions in certain residuary
situations, as provisions of Order XXXIX
are not exhaustive of the Court's injunctive
jurisdiction. Section 94(c) of the Code
provides that the Court may grant a
temporary injunction only "if it is so
prescribed". The expression "prescribed" in
Section 94 would obviously mean, as
defined in Section 2(16) of the Code,
"prescribed by Rules". The Rules which
prescribe grant of temporary injunction are
Rules 1 and 2 of Order XXXIX and,
therefore, a temporary injunction may be
granted under Section 94(c) only if a case
satisfying the requirements of Rules 1 and
2, Order XXXIX is made out. Court does
not have two sources of power, one under
Section 94(c) and another under Order
XXXIX of the Code and may resort to one
or the other as and when necessary. Under
the Code the Court grants temporary
injunction only under one set of provisions,
namely, Section 94(c) read with Order
XXXIX Rules 1 and 2 of the Code. It is
true that, as pointed out by the Supreme
Court in Manohar Lal Vs. Seth Hiralal
MANU/SC/0056/1961: AIR1962SC527, a
Court can grant temporary injunction in
exercise of its inherent powers also, but
there it does not grant it under any power
conferred by the Code but under powers
inhering in its very constitution which are
saved by and under Section151 of the
Code.

17. Interim or temporary injunction
may consist of two stages:-

(i) ad-interim injunction, which is
granted
without
finally
deciding
or
disposing the application for injunction and
operates immediately till the disposal of the
application or till some other order is
passed.

(ii) interim injunction is normally
granted while deciding and disposing the
application for interim injunction to ensure,
generally, till disposal of the suit.

18. Section 37 of Specific Relief Act,
Section 94 (c) C.P.C. orOrder XXXIX Rule
1 and 2 of C.P.C., which provides for
temporary injunction do not use the word
interim or ad-interim. Interim or ad-interim
are the phrases coined by legal fraternity to
indicate the stage at which such orders are
passed. Bombay High Court in case of
Rajendraprasad
R.
Singh
vs
The
Municipal Corpn. Of Gr. Bombay; AIR
2003 BOM 392 stated: "Rule 1 and Rule 2
of Order XXXIX do not use the words
"interim or ad interim". These are the
words coined by the lawyers and the courts
merely to indicate the stage at which orders
are passed. Interim order usually remains in
force for whole of the period of the suit
unless varied under Rule 4 or set aside in
appeal. Ad interim order operates only till
the
hearing
of
the
application
for
injunction."

19. Usually, ad interim order is passed
ex parte though it can also be passed when
other side is present. It is possible that in a
given case at the time of institution of a
suit, the plaintiff does not make an
application
for
an order of
interim
injunction as he feels no necessity in which
case only summons of the suit are issued to
the defendant. During the pendency of the
suit, a contingency may arise requiring the
plaintiff to apply for an injunction. When
such an application is made and when the
defendant is present and seeks time to file
reply, the court may pass ad interim order
11 All. Chirag Aashiana Pvt. Ltd. A-4 Vs. Smt. Santosh & Anr.
999
of
injunction
pending
reply
of
the
defendant. In some cases, even after the
reply is filed by the defendants the court
may grant ad interim order of injunction if
it does not have time to hear the matter and
feels that it is necessary to grant injunction
pending hearing to protect the plaintiff.
Thus, ad interim order of injunction may be
ex parte or may be passed even in the
presence of the defendants. There is no
qualitative difference between an interim
and ad interim order except about the
period for which they operate and the stage
at which they are passed.

20. Primary purpose of granting
interim relief is the preservation of property
in dispute till legal rights and conflicting
claims of the parties before the court are
adjudicated. In other words, the object of
making an order regarding interim relief is
to evolve a workable formula to the extent
called for by the demands of the situation,
keeping in mind the pros and cons of the
matter and striking a delicate balance
between two conflicting interests, i.e.,
injury and prejudice, likely to be caused to
the plaintiff if the relief is refused; and
injury and prejudice likely to be caused to
the defendant if the relief is granted. The
court in the exercise of sound judicial
discretion can grant or refuse to grant
interim injunction.

21. Section 104 of Order XLIII of the
C.P.C. deals with appeals from orders.
Section 104 enacts that an appeal shall lie
from those orders which have been
enumerated in sub-Section 1 and "save as
otherwise expressly provided in the body of
this Code or by any law for the time being
in force", not from other orders. Under
Order XLIII appeal lies against certain
orders. Section 104 and Order XLIII,
therefore, have to be read together. Section
104 and Order XLIII of C.P.C. are quoted
as under:-

"S. 104 Orders from which
appeal lies.

(1) An appeal shall lie from the
following orders, and save as otherwise
expressly provided in the body of this Code
or by any law for the time being in force,
from no other orders:---

1** * * *

2[(ff) ... ....

3[(ffa) ... .....

(g). ... .....

(h) . ... .....

(i) . ... .....

2[.... .....

(2). ... .....

ORDER XLIII - Appeals from
Orders

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

(a) ... .....(q)...

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

(s) ...(w) ... .....

Rule 2: Procedure-
1000 INDIAN LAW REPORTS ALLAHABAD SERIES

The rules of Order XLI shall
apply, so far as may be, to appeals from
orders."

22. The term "order" has been defined
as the "formal expression of a decision of
Civil Court, which is not a decree". The
distinction between a decree and an order
lies in the fact that whereas every decree is
appealable unless barred by the Code or by
any other law for the time being in force,
no appeal lies from an order unless it is
expressly provided by the Code or by any
law for the time being in force.

23. Before considering the question as
to whether an appeal will lie against an exparte injunction under Order XLIII Rule
1(r) it would be appropriate to consider the
right to appeal of a litigant. The expression
of 'appeal' has not been defined in the
Code. According to dictionary meaning,
however, 'appeal' is an application or
petition to a higher authority or a court of
law for reconsideration of decision of a
lower authority or an inferior court of law.
(Chamber's
21st
Century
Dictionary,
(1997))

24. In Nagendra Nath Vs. Suresh
Chandra; AIR 1932 PC 165: 59 IA 283,
speaking for the Judicial Committee of the
Privy Council, Sir Dinshaw Mulla stated:

"There is no definition of appeal
in the Code of Civil Procedure, but their
Lordships
have
no
doubt
that
any
application by a party to an appellate
Court, asking it to set aside or revise a
decision of a subordinate Court, is an
appeal within the ordinary acceptation of
the term... ....."

25. M. Ramanarain Pvt. Ltd. Vs.
State of Trading Corporation of India
Ltd.; (1983) 3 SCC 75, the Supreme Court
stated:-

"The right to prefer an appeal is
a right created by Statute. No party can file
an appeal against any judgment, decree or
order as a matter of course in the absence
of a suitable provisions of some law
conferring on the party concerned the right
to file an appeal against any judgment,
decree or order."

26. The right of appeal is not a natural
or inherent right, it is well settled that an
appeal is creature of a statute and there is
no right to file an appeal unless it is given
clearly and in express term by legislation.
In other words, a right of appeal requires
legislative authority. Neither an inferior
court, nor a superior court nor both
combined can create such a right.

27. There is a fundamental distinction
between right to file a suit and the right to
file an appeal. An appeal is a creature of a
statute and it is for the legislature to decide
whether the right of appeal should be
conferred on the aggrieved party or not.
Every person has an inherent right to file a
suit of a civil nature unless; such right is
barred by statute, either expressly or by
necessary implication. The position of
appeal, however, is quite different. There is
no right of appeal and for maintainability of
appeal, there must be an authority of law.

28. The distinction between a right to
bring a suit and right to file an appeal has
been
succinctly
and
appropriately
explained by Chandrachud, J. (as he then
was) in Ganga Bai v. Vijay Kumar; AIR
1974 SC 1126, in the following words:

"There is a basic distinction
between the right of suit and the right of
11 All. Chirag Aashiana Pvt. Ltd. A-4 Vs. Smt. Santosh & Anr.
1001
appeal. There is an inherent right in every
person to bring a suit of a civil nature and
unless the suit is barred by statute one may,
at one's peril, bring a suit of one's choice.
It is no answer to a suit, howsoever
frivolous the claim, that the law confers no
such
right
to
sue. A
suit
for
its
maintainability requires no authority of law
and it is enough if no statute bars the suit.
But the position in regard to appeal is quite
the opposite. The right of appeal inheres in
no one and therefore an appeal for its
maintainability
must
have
the
clear
authority of law."

29. The right of appeal is a substantive
right and not merely a matter of procedure.
It is a vested right and accrues in favour of
the litigant on the date lis commences and
although, it may be actually exercised when
an adverse judgment is pronounced, such a
right is governed by the law prevailing at
the date of institution of the suit or
proceeding and not by the law that prevails
at the date of its decision or at the date of
filing of appeal. It is well settled that right
of appeal arises when a proceeding is
commenced and cannot be taken away by a
subsequent legislation except by express
provision or by necessary intendment to the
contrary. Ram Singha Vs. Shankar
Dayal; (1928) I.L.R. 50 All. 965 (F.B.).

30. The right of appeal being a
creature of a statute, exercise of such right
can be circumscribed by the condition in
the grant. The statute providing for an
appeal may also provide conditions for
exercise of right of appeal. In some cases,
such as for example, Section 406 of
Bombay Provincial Municipal Corporations
Act, 1949 provided no appeal against
assessment of tax would be maintainable
unless the amount of tax has been
deposited. In other words, the deposit of
amount of tax was a condition precedent to
entertain an appeal. The condition of predeposit was challenged and the Supreme
Court in case of The Anant Mills Co. Ltd.
v. State of Gujarat and Others; AIR
1975 Supreme Court 1234, the Supreme
Court has held "It is open to the Legislature
to impose an accompanying liability upon a
party upon whom legal right is conferred
or to prescribe conditions for the exercise
of the right. Any requirement for the
discharge of that liability or the fulfilment
of that condition in case the party
concerned seeks to avail of the said right is
a valid piece of legislation, and we can
discern no contravention of Article 14 in
it........"

31. Again in case of Seth Nand Lal
and Another vs. State of Haryana and
Others; AIR 1980 Supreme Court 2097
following the Anant Mill's case (supra) the
Supreme Court stated "It is well settled by
several decisions of this Court that the
right of appeal is a creature of a statute
and there is no reason why the legislature
while granting the right cannot impose
conditions for the exercise of such right so
long as the conditions are not so onerous
as to amount to unreasonable restrictions
rendering the right almost illusory".

32. Again in case of Vijay Prakash
D. Mehta and another vs. Collector of
Customs (Preventive), Bombay; (1988) 4
SCC 402, the Supreme Court reiterated
"the right to appeal is neither an absolute
right nor an ingredient of natural justice
the principles of which must be followed in
all judicial or quasi-judicial adjudications.
The right to appeal is a statutory right and
it can be circumscribed by the condition in
grant......If the statute gives a right of
appeal upon certain conditions, it is upon
fulfillment of those conditions that right
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
becomes vested and exercisable by the
appellant."

33. In case of Garikapatti Veeraya vs
N. Subbiah Choudhury; 1957 AIR 540
after referring to several leading decisions
on the point, the Supreme Court observed
that a vested right of appeal can be taken
away only by a subsequent enactment, if it
so
provides
either
expressly
or
by
necessary intendment and not otherwise.
(Para 28 of the judgment).

34. Hon'ble Supreme Court in case of
Mukund Deo (Dead) represented by his
legal representatives Kasibai and others
vs. Mahadeo and others reported in
AIR1965 SC 703 held that it is true that as
a general rule, alteration in the law of
procedure are retrospective, but a right of
appeal to a particular forum is a substantive
right and is not lost by alteration in the law
unless, provision is made expressly in that
behalf, or a necessary implication arises.

35. In view of the law laid down by
the Hon'ble Supreme Court a right of appeal
is a vested right and is governed by the statute
which confers such right. In case the statute or
the law which confers the right places certain
conditions for exercise of such right, the said can
be exercised only after the fulfillment of those
conditions by the appellant. The Hon'ble
Supreme Court while interpreting the right of
appeal being substantive right has held to the
extent that by a subsequent enactment (such as
Court Fees Act), the right of the appellant cannot
be impaired or made onerous by providing
additional conditions by the subsequent Act.
Unless, the subsequent Act providing for such a
condition is made retrospective either expressly
or by necessary intendment.

36. Learned counsel for the petitioner
submitted that since ex-parte injunction is
granted under Rule 3 of Order XXXIX and
there is no corresponding amendment in the
Order XLIII granting right of appeal
against an ex-parte injunction order granted
under Rule 3 of Order XXXIX, no appeal
can be filed against the ex-parte injunction.
Learned counsel for the petitioner relied
upon paragraph No. 22 of the judgment of
this Court in case of Gurmej Singh (supra).

37.
Learned
Standing
Counsel
submitted that power to grant temporary
injunction whether ex-parte or after hearing
the parties emanates from Rule 1 and 2 of
Order XXXIX and not from Rule 3 of
Order XXXIX. Rule 3 of Order XXXIX
provides the procedure to be followed by
the courts while exercising the power
provided under Rule 1 and 2 of Order
XXXIX. Learned Standing Counsel relied
upon the judgment of the Full Bench of this
Court in case of Zila Parishad Budaun
Vs. Brahma Rishi Sharma reported in
1969 SCC On Line All 237 and also
judgment of Supreme Court in case of A.
Venkatasubbiah Naidu (supra).

38. Rule 1 or Rule 2 of Order XXXIX
are repository of the power to grant
injunction. An order of injunction is always
passed under Rule 1 or Rule 2 Order
XXXIX save and except rare orders passed
under Section 151 of the Code of Civil
Procedure. Ad interim order operates only
till the hearing of the application for
injunction. The Supreme Court in case of
A. Venkatasubbiah Naidu (supra) after
considering the Rule 1 of Order XXXIX in
paragraph No. 13 has held "it cannot be
contended that power to pass interim exparte orders of injunction does not emanate
from the said Rule. In fact, the said Rule is
the repository of the power to grant orders
of temporary injunction with or without
notice, interim or temporary, or till further
11 All. Chirag Aashiana Pvt. Ltd. A-4 Vs. Smt. Santosh & Anr.
1003
orders or till disposal of the suit." The Full
Bench of the Allahabad High Court in case
of Zila Parishad, Budaun (supra) held an
ex-parte order of injunction made under
Order XXXIX of C.P.C. will fall either
under Rule 1 or Rule 2. There is no other
provision under which such an order can be
made.

39. Paragraph No. 22 of the judgment
in case of Gurmej Singh (supra) relied upon
by the learned counsel for the petitioner is
quoted as under:-

"22.