# Gurmej Singh & Ors v. Ranjit Kaur & Ors

- **Citation:** (2021) 1 ILRA 1026
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-07
- **Case number:** Matter Under Article 227 No. 3189 of 2020
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gurmej-singh-ors-v-ranjit-kaur-ors-46094
- **Pages:** 13

## Headnote

Sri
Arvind
Kumar
Tiwari,
Sri
Arvind
Srivastava

A. Civil Law - Constitution of India: Article
227 - Maintainability of appeal against
order passed in exercise of powers under
Proviso to Rule 3 of Order 39 CPC - Code
of Civil Procedure, 1908: Order 39 Rule 3A, Order 39 Rule 3, Order 43 Rule (1)(r) -
In Order 43 Rule (1) (r) CPC, though Rule
3 (which necessarily include Proviso to
Rule 3 of Order 39 CPC) has not been
mentioned, however, in view of the
authorities the appeal under the aforesaid
provision would be maintainable.

Such appeal, if filed, would be maintainable
only after expiry of thirty days, where the
provision of added Rule 3-A to Order 39 CPC
is in force. However, in the State of U.P.,
since the Circular dated 16.8.2017 has been
issued providing for six months time for
disposal of applications of interim injunction
failing which the subordinate court must
have to record reasons in the order-sheet,
therefore, such misc. appeal would be
maintainable only after expiry of six months.
(Para 38)

In
absence
of
any
specific
statutory
provision, such appeal, if filed, on expiry of
aforesaid time period can be entertained
guided by the parameters set out in the
judgment of A. Venkatasubbiah Naidu (infra)
or in any other judgment on this issue.

In the present case, the defendant has not
filed any application before the trial court to
vacate the ex-parte temporary injunction and
it is also not a case where plaintiff is
aggrieved that the trial court is not deciding
or has failed to decide the temporary
injunction
application.
Therefore,
as
observed by Hon'ble Supreme Court in A.
Venkatasubbiah Naidu (infra), the order
dated 5.8.2020 passed by the trial court
cannot be deemed to be final order in nature
on the date of expiry of thirty days
mentioned in Order 39 Rule 3-A CPC. The
natural consequence whereof is that misc.
appeal under Order 43 Rule 1(r) CPC would
not be maintainable. (Para 16)

In
the
State
of
U.P.
in
absence
of
applicability of Rule 3-A thirty days time limit
can be safely treated to be six months for
disposal of temporary injunction application
and also for the purpose of deemed inclusion
of order passed in exercise of powers under
Proviso to Rule 3 of Order 39 CPC (after six
1 All. Gurmej Singh & Ors. Vs. Ranjit Kaur & Ors.
1027
months) in Order 43 Rule (1) (r) CPC. (Para
20)

B. Appellate Court is bound to record
reasons - While entertaining such appeal
the appellate court is bound to record
reasons for entertaining such appeal, and
such appeal must indicate the omission on
the part of the trial court to decide such
temporary injunction application finally, if
filed, by the plaintiff or omission on the
part of the trial court to decide an
application filed by the defendant for
vacating the interim order granted by the
trial court within the said time period of six
months (in the State of U.P.). (Para 17, 38)

No such action or omission on the part of
the trial court exists in this case. On th

## Text

_Characters 0–39,842 of 44,450. This is a partial read: ask again with offset=39842 for what follows._

1026 INDIAN LAW REPORTS ALLAHABAD SERIES
mind to relevant considerations and does
not stand the test of the law as laid down in
the cases of ''Ram Deo Food Products'
(Supra) and 'Gulab Chand Upadhyay'
(Supra).

16. The present petition/application is,
therefore,
allowed.
The
order
under
challenge is set-aside with the direction to
the learned Magistrate to pass fresh orders
on the application of the applicant after
affording opportunity of hearing to him, in
accordance with law, in the light of the
observations made herein above, within a
period of one month from the date of
production of true/attested copy of this
judgment before the learned Magistrate
concerned.

17. No orders as to costs.
----------
(2021)01ILR A1026
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2020

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Matter Under Article 227 No. 3189 of 2020

Gurmej Singh & Ors. ...Petitioners
Versus
Ranjit Kaur & Ors. ...Respondents

Counsel for the Petitioners:
Sri
Praveen
Kumar,
Sri
Onkar
Nath
Vishwakarma, Sri Pradeep Kumar

Counsel for the Respondents:
Sri
Arvind
Kumar
Tiwari,
Sri
Arvind
Srivastava

A. Civil Law - Constitution of India: Article
227 - Maintainability of appeal against
order passed in exercise of powers under
Proviso to Rule 3 of Order 39 CPC - Code
of Civil Procedure, 1908: Order 39 Rule 3A, Order 39 Rule 3, Order 43 Rule (1)(r) -
In Order 43 Rule (1) (r) CPC, though Rule
3 (which necessarily include Proviso to
Rule 3 of Order 39 CPC) has not been
mentioned, however, in view of the
authorities the appeal under the aforesaid
provision would be maintainable.

Such appeal, if filed, would be maintainable
only after expiry of thirty days, where the
provision of added Rule 3-A to Order 39 CPC
is in force. However, in the State of U.P.,
since the Circular dated 16.8.2017 has been
issued providing for six months time for
disposal of applications of interim injunction
failing which the subordinate court must
have to record reasons in the order-sheet,
therefore, such misc. appeal would be
maintainable only after expiry of six months.
(Para 38)

In
absence
of
any
specific
statutory
provision, such appeal, if filed, on expiry of
aforesaid time period can be entertained
guided by the parameters set out in the
judgment of A. Venkatasubbiah Naidu (infra)
or in any other judgment on this issue.

In the present case, the defendant has not
filed any application before the trial court to
vacate the ex-parte temporary injunction and
it is also not a case where plaintiff is
aggrieved that the trial court is not deciding
or has failed to decide the temporary
injunction
application.
Therefore,
as
observed by Hon'ble Supreme Court in A.
Venkatasubbiah Naidu (infra), the order
dated 5.8.2020 passed by the trial court
cannot be deemed to be final order in nature
on the date of expiry of thirty days
mentioned in Order 39 Rule 3-A CPC. The
natural consequence whereof is that misc.
appeal under Order 43 Rule 1(r) CPC would
not be maintainable. (Para 16)

In
the
State
of
U.P.
in
absence
of
applicability of Rule 3-A thirty days time limit
can be safely treated to be six months for
disposal of temporary injunction application
and also for the purpose of deemed inclusion
of order passed in exercise of powers under
Proviso to Rule 3 of Order 39 CPC (after six
1 All. Gurmej Singh & Ors. Vs. Ranjit Kaur & Ors.
1027
months) in Order 43 Rule (1) (r) CPC. (Para
20)

B. Appellate Court is bound to record
reasons - While entertaining such appeal
the appellate court is bound to record
reasons for entertaining such appeal, and
such appeal must indicate the omission on
the part of the trial court to decide such
temporary injunction application finally, if
filed, by the plaintiff or omission on the
part of the trial court to decide an
application filed by the defendant for
vacating the interim order granted by the
trial court within the said time period of six
months (in the State of U.P.). (Para 17, 38)

No such action or omission on the part of
the trial court exists in this case. On the
contrary, in the light of Proviso to Rule 3 of
Order 39 CPC reasons have been recorded
by the trial court and directions were given
to take steps, which were also taken by the
plaintiff and defendant was duly served the
notices. (Para 30)

Court further clarified that in case the
temporary injunction application filed by the
plaintiff or any other party to the suit
interested in temporary injunction is not
decided within the time period of six
months in the State of U.P., he can file
misc. appeal under the provisions of Order
43 Rule (1) (r) CPC, which can be
entertained for the reasons recorded and in
case of non-consideration of disposal of the
stay vacation application filed by the
defendant or any other party to the suit, he
can also file misc. appeal under the
aforesaid provision, which can also be
considered for the reasons recorded as per
the parameters set out by the Courts. (Para
29, 38)

There
is
a
difference
in
"maintainability"
and
"entertainability". The misc. appeal may
be 'maintainable' but the same can be
'entertained' only on the parameters set out
in the relevant statutory provisions and if
there is no such provision of law available,
then as per the law laid down by the
Courts. (Para 27)
C. Appeal can be considered only on
the evidence already on record unless
additional evidence is received as per
the procedure prescribed - If any such
misc. appeal is filed, the same can be
considered only on the evidence already on
record before the trial court unless the
additional evidence is received by the
appellate court under Order 41 Rule 27 CPC
as per the law by recording reasons. In
other words, in such misc. appeal the
appellant cannot rely on the evidence filed
by him in the appellate court without the
same having not been allowed by the misc.
court under Order 41 Rule 27 CPC. (Para
38)

In the present case, even before the date
fixed by the trial court, without putting in
appearance in the trial court, the misc.
appeal was filed and from perusal of the
lower appellate court order it is reflected
that the evidence on affidavit was filed by
the parties (including the defendant) and
was accepted by the lower appellate court
also as such, and not under Order 41 Rule
27 CPC by recording reasons for accepting
the same. (Para 35)

Writ Petition allowed. (E-3)

Precedent followed:

1. Zila Parishad, Budaun & ors. Vs Brahma Rishi
Sharma, 1970 AIR (Allahabad) 376 (FB) (Para 8)

2. Venkatasubbiah Naidu Vs S. Challappan & ors.,
(2000) (7) SCC 695 (Para 14)

3. M/s Lakshmiratan Engineering Works Ltd. Vs
Asst. Comm. (Jud.) I, Sales Tax Kanpur Range
Kanpur & anr., AIR 1968 SC 448 (Para 28)

Present petition challenges order dated
27.08.2020,
passed
by
District
Judge,
Pilibhit.

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri Pradeep Kumar, learned
Senior Counsel assisted by Sri Onkar Nath
Vishwakarma, learned counsel for the
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners through video conferencing and
Sri Arvind Srivastava along with Sri Arvind
Kumar Tiwari, learned counsel for the
caveator defendants-respondents and perused
the record.

2. With the consent of learned counsel
for the parties, present petition is being
decided at this stage itself.

3. Present petition has been filed for
setting aside the the order dated 27.8.2020
passed by District Judge, Pilibhit in Misc.
Appeal No. 12 of 2020 (Ranjit Kaur and
others vs. Gurmej Singh and others).

4. By the order dated 5.8.2020 the
trial court has granted an ex-parte interim
injunction by recording reasons. Defendant
no. 1 is the purchaser of the property from
one of the co-sharers. The order of ex-parte
temporary injunction was granted and the
plaintiff was directed to comply with the
provision of Order 39 Rule 3 CPC and
28.8.2020 was fixed for hearing for
temporary
injunction
application.
The
defendant after receiving the notice filed
misc. appeal on 20.8.2020 prior to the date
fixed by the trial court, which was decided
by the lower appellate court vide impugned
order dated 27.8.2020, whereby the order
of trial court granting interim order was
rejected.

5. By drawing attention to the prayer
clause of the plaint Sri Pradeep Kumar,
learned Senior Counsel submitted that the
suit was for cancellation of the sale deed
and for injunction both. This fact has been
noticed by the lower appellate court at
internal page 2 of the order. However, it is
reflected from perusal of internal page 5
and internal page 13 (paragraph 23) that the
lower appellate court proceeded as if the
suit was injunction suit simplicitor and
therefore,
the
order
was
set
aside.
Submission is that the order is wholly
illegal.

6. Learned counsel for the defendantrespondent supported the impugned order.

7. That apart, this Court has put a
pointed query to learned counsel appearing
for the respondents that how the misc.
appeal against the ex-parte injunction was
maintainable and / or entertainable?

8.

Learned
counsel
for
the
respondents by placing reliance on decision
of Full Bench of this Court in the case of
Zila Parishad, Budaun and others vs.
Brahma
Rishi
Sharma
1970
AIR
(Allahabad) 376 (FB) submitted that the
misc. appeal filed by the defendants under
Order
43
Rule
(1)
(r)
CPC
was
maintainable. Paragraphs 9, 10, 11, 12, 13
and 16 of the aforsaid judgment are quoted
as under:-

"9. Order 43, Rule (1) (r) pertinently
reads:

"An appeal shall lie from ..... an order
under Rule 1, Rule 2..... of Order XXXIX."

10. Re. Question (1): It is now to be
seen whether an ex parte order of
Injunction falls within the purview of Rule
l(r) of Order 43.

11. Two things deserve notice at
threshold. Firstly, the language of Rule l(r)
is unhedged and broad. Secondly, courts
should lean in favour of an interpretation
which expands rather than shrinks a
remedial right. A remedial provision of law
is generally construed liberally. Rule 1 (r)
creates a remedial right of appeal for
protection of substantial and substantive
rights.

12. An ad interim injunction may be
granted under Order XXXIX or Section
1 All. Gurmej Singh & Ors. Vs. Ranjit Kaur & Ors.
1029
151 in some cases. No appeal lies against
an order under Section 151. be it ex parte
or otherwise. An ex parte order of
injunction made under Order XXXIX will
fall either under Rule 1 or Rule 2. There is
no other provision under which such an
order can be made. Rule 1 (r) of Order 43
does not say that an appeal shall lie from a
final order under Rule 1 or Rule 2 of Order
XXXIX. No adequate reason is shown for
interpolating the word 'final' before 'order'
in Rule l(r). Courts do not ordinarily make
additions
in
enactments.
That
is
a
legislative function.

13. Let us now examine the scheme of
Rules 1 to 4 of Order XXXIX. Rules 1 and
2 provide for the making of an interim
order of injunction. Rule 3 firstly provides
that an interim injunction should ordinarily
be granted after notice to the adversary
party. Secondly, it provides that notice may
be dispensed with where the court is
satisfied that it would defeat the purpose of
granting an injunction. Rule 4 provides that
an order of injunction may be discharged or
varied or set aside on an application made
by the party dissatisfied with such order.

16. The language and the object of
Rule 1(r) of Order 43 and the scheme of
Rules 1 to 4 of Order 39 show that an
appeal also lies against the ex parte order of
injunction. As soon as an interim injunction
is issued and the party affected thereby is
apprised of it, he has two remedies: (1) he
can either get the ex parte injunction order
discharged or varied or set aside under Rule
4 of Order 39 and if unsuccessful avail the
right of appeal as provided for under Order
43, Rule 1 (r), or (2) straightway file an
appeal under Order 43, Rule 1 (r) against
the injunction order passed under Rules 1
and 2 of Order 39. C.P.C. It is not unusual
to provide for alternative remedies. For
instance, when an ex parte decree is passed
against a person, he has two remedies:
either he may go up in appeal against the ex
parte decree or he may seek to get the ex
parte decree set aside by the same court."
 (emphasis supplied)

9. Admittedly, the aforesaid judgment
is of the year 1970 and amendments were
made in the year 1976 Vide Section 86 of
Act 104 of 1976 w.e.f. 1.2.1977, whereby
Proviso to Rule 3 was added in Order 39
CPC providing powers to the trial court to
grant injunction without giving notice to
the opposite parties, Thus, with all respect
at my command it is observed that
judgment of the Hon'ble Full Court was
based on the fact that at that point of time
there was no specific provision giving
power to the trial court for passing ex-parte
order of temporary injunction.

10. By the same Section 86 of
Amending Act 104 of 1976 Rule 3-A was
also added to Order 39 CPC to provide that
court is to dispose of application for
injunction within 30 days.

11. Therefore, the Hon'ble Full Bench
had no occasion to consider Rule 3 and
Rule 3-A added to Order 39 CPC in the
year 1976. May be, which could have
substantially influenced the judgment of the
Hon'ble Full Bench.

12. It would be appropriate to take
note of relevant provision of CPC. Order
39 Rule 3 and 3A CPC and Order 43 Rule
(1) (r) are quoted as under:-

"Order XXXIX CPC

3. Before granting injunction, Court
to direct notice to opposite party - The
Court shall in all cases, except where it
appears that the object of granting the
injunction would be defeated by the delay,
before granting an injunction, direct notice
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
of the application for the same to be given
to the opposite party:

Provided that, where it is proposed to
grant an injunction without giving notice of
the application to the opposite party, the
Court shall record the reasons for its
opinion that the object of granting the
injunction would be defeated by delay, and
require the applicant-

(a) to deliver to the opposite party, or
to send to him by registered post,
immediately after the order granting the
injunction has been made, a copy of the
application for injunction together with-

(i) a copy of the affidavit filed in
support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the
applicant relies, and

(b) to file on the day on which such
injunction is granted or on the day
immediately following that day, an affidavit
stating that the copies aforesaid have been
so delivered or sent.

3A. Court to dispose of application for
injunction within thirty days - Where an
injunction has been granted without giving
notice to the opposite party, the Court shall
make an endeavour to finally dispose of the
application within thirty days from the date
on which the injunction was granted; and
where it is unable so to do, it shall record its
reasons for such inability.

Allahabad - Rule 3-A shall be omitted
(Vide Noti. No. 103/IV-h-360 dt. Feb. 3,
1981, w.e.f. Oct. 3, 1981.

Order XLIII CPC

1. Appeals from orders-

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

Rule 2-A Ins. By Act 104 of 1976, S. 89
(w.e.f. 1-2-1977)" (emphasis supplied)

13. As noticed above Rule 3-A stood
omitted in State of Uttar Pradesh w.e.f.
3.10.1981.

14. Subsequently, Hon'ble Apex Court
has held in A. Venkatasubbiah Naidu vs. S.
Challappan and others 2000 (7) SCC 695
(paragraph 21) that the misc. appeal would
not be maintainable before 30 days in case
the injunction application is not decided,
paragraphs 15, 21and 22 are quoted as
under:-

"15. What would be the position if
a court which passed the order granting
interim ex parte injunction did not record
reasons thereof or did not require the
applicant to perform the duties enumerated in
clauses (a) & (b) of Rule 3 of Order 39. In
our view such an Order can be deemed to
contain such requirements at least by
implication even if they are not stated in so
many words. But if a party, in whose favour
an order was passed ex parte, fails to comply
with the duties which he has to perform as
required by the proviso quoted above, he
must take the risk. Non-compliance with such
requisites on his part cannot be allowed to go
without any consequence and to enable him
to have only the advantage of it. The
consequence of the party (who secured the
order) for not complying with the duties he is
required to perform is that he cannot be
allowed to take advantage of such order if the
order is not obeyed by the other party. A
disobedient beneficiary of an order cannot be
heard to complain against any disobedience
alleged against another party.

21. It is the acknowledged
position of law that no party can be forced
to suffer for the inaction of the court or its
omissions to act according to the procedure
established by law. Under the normal
circumstances the aggrieved party can
prefer an appeal only against an order
passed under Rules 1,2,2A, 4 or 10 of
Order 39 of the Code in terms of Order 43
Rule 1 of the Code. He cannot approach the
appellate or revisional court during the
1 All. Gurmej Singh & Ors. Vs. Ranjit Kaur & Ors.
1031
pendency of the application for grant or
vacation of temporary injunction. In such
circumstances the party who does not get
justice due to the inaction of the court in
following the mandate of law must have a
remedy. So we are of the view that in a case
where the mandate of Order 39 Rule 3A of
the Code is flouted, the aggrieved party,
shall be entitled to the right of appeal
notwithstanding the pendency of the
application for grant or vacation of a
temporary injunction, against the order
remaining in force. In such appeal, if
preferred, the appellate court shall be
obliged to entertain the appeal and further
to take note of the omission of the
subordinate court in complying with the
provisions of Rule 3A. In appropriate cases
the appellate court, apart from granting or
vacating or modifying the order of such
injunction, may suggest suitable action
against the erring judicial officer, including
recommendation to take steps for making
adverse entry in his ACRs. Failure to
decide the application or vacate the exparte temporary injunction shall, for the
purposes of the appeal, be deemed to be the
final order passed on the application for
temporary injunction, on the date of expiry
of thirty days mentioned in the Rule.

22. Now what remains is the
question whether the High Court should
have entertained the petition under Article
227of the Constitution when the party had
two other alternative remedies. Though no
hurdle can be put against the exercise of the
constitutional powers of the High Court it
is a well recognized principle which gained
judicial recognition that the High Court
should direct the party to avail himself of
such remedies one or the other before he
resorts to a constitutional remedy. Learned
single judge need not have entertained the
revision petition at all and the party
affected by the interim ex parte order
should have been directed to resort to one
of the other remedies. Be that as it may,
now it is idle to embark on that aspect as
the High Court had chosen to entertain the
revision petition."

 (emphasis supplied)

15. In the present case, admittedly, the
appeal was filed without appearing before
the trial court that too prior to the date fixed
before the trial court, which was fixed for
28.2.2020. The misc. appeal was filed on
20.8.2020 and was decided on 27.8.2020.
Therefore, the order passed in misc. appeal
is totally without jurisdiction as in view of
A. Venkatasubbiah Naidu (supra), the
misc. appeal itself was not maintainable.

16. The defendant has not filed any
application before the trial court to vacate
the ex-parte temporary injunction and it is
also not a case where plaintiff is aggrieved
that the trial court is not deciding or has
failed to decide the temporary injunction
application. Therefore, as observed by
Hon'ble
Supreme
Court
in
A.
Venkatasubbiah Naidu (supra), the order
dated 5.8.2020 passed by the trial court
cannot be deemed to be final order in
nature on the date of expiry of thirty days
mentioned in Order 39 Rule 3-A CPC. The
natural consequence whereof is that misc.
appeal under Order 43 Rule 1(r) CPC
would not be maintainable.

17. It is also pertinent to note that as
held by Hon'ble Supreme Court in A.
Venkatasubbiah Naidu (supra) if any
such appeal is filed, the appellate court
shall be under obligation to take note of the
omission
of
the
subordinate
court.
Indisputably, no such observation regarding
omission on part of the trial court has been
made
by
the
lower
appellate
court
justifying entertaining misc. appeal, even
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
if, for the sake of arguments the same was
maintainable (which, in fact, was not in the
present case).

18. It is also pertinent to note that the
Rule 3-A added to Order 39 CPC by way of
amendment in 1976 has no application in
the State of U.P. as the same stood omitted
vide Notification No. 103/IV-h-360 dt. Feb.
3, 1981, w.e.f. Oct. 3, 1981 in the State of
U.P. Therefore, no finality, on failure of
trial court to decide temporary injunction
application or vacate the same on the date
of expiry of thirty days mentioned in Order
39 Rule 3-A CPC as held in A.
Venkatasubbiah Naidu (supra), would be
attracted in the State of U.P.

19. Further, this Court has issued a
Circular Letter dated 16.8.2017 regarding
time bound disposal of the interim
injunction application, which is quoted as
under:-

"Through Registered Post/E-mail

From,

Mohd. Faiz Alam Khan, HJS,

Registrar General,

High Court of Judicature at

Allahabad.

To,

All the District & Sessions Judges,

Subordinate to the High Court of
Judicature at

Allahabad.

C.L. No. 24/Admin. 'G-II' Dated:
Allahabad 16.08.17

Sub: Time bound disposal of interim
injunction application.

Madam/Sir

Hon'ble Court has directed that
all the subordinate courts must ensure to
dispose
of
applications
of
interim
injunction within six months, failing which
they shall have to record reasons in the
order sheet.

I am, therefore, directed to request you
to circulate the instant direction amongst
all the Judicial Officers working under
your supervision and control and to ensure
strict compliance of the same in letter and
spirit.

Yours faithfully,

Sd/-

(Mohd. Faiz Alam Khan)

 No.
/Admin.'G-II'
Dated:
Allahabad 2017.

Copy forwarded for information and
necessary action to:

1. The Registrar, High Court of
Judicature at Lucknow Bench, Lucknow.

2. P.S. to all the Hon'ble Judges at
Allahabad and also at Lucknow Bench,
Lucknow to place the same before their
Lordships for kind perusal.

3. The Director, Judicial Training &
Research Institute, Gomti Nagar, Lucknow.

4. All the Judicial Officers posted in
the Registry in Allahabad High Court and
Lucknow Bench, Lucknow.

5. The Member Secretary, U.P. State
Legal Services Authority, III floor, Jawahar
Bhawan, Annexe Lucknow.

6. Section Officer, Admin. 'H' Section
for compliance of guard file."
 (Emphasis supplied)

20. Thus, in a way, even if Order 39
Rule 3-A CPC is omitted in the State of UP,
a direction to ensure disposal of interim
injunction application within six months
has been given by this Court. This direction
appears to be to balance the equity between
the parties, as on one hand, party enjoys the
ex-parte temporary injunction order would
be interested in prolonging the same and on
the other hand, if temporary injunction is
not granted, the other party would be
1 All. Gurmej Singh & Ors. Vs. Ranjit Kaur & Ors.
1033
interested in prolonging the disposal of the
same. Hence, in the State of U.P. in absence
of applicability of Rule 3-A thirty days time
limit can be safely treated to be six months
for disposal of temporary injunction
application and also for the purpose of
deemed inclusion of order passed in
exercise of powers under Proviso to Rule 3
of Order 39 CPC (after six months) in
Order 43 Rule (1) (r) CPC.

21. The judgment of Hon'ble Full
Bench in Zila Panchayat, Budaun (supra)
was rendered in the year 1970 much prior
to insertion of Proviso to Rule 3 of Order
39 CPC and Order 39 Rule 3-A CPC.

22. It is also pertinent to note that
although amendments were made in Order
39 Rule 3 CPC by adding Proviso granting
power to the trial court to grant ex-parte
injunction without issuing notice to the
opposite parties, however, no amendment
was made in Order 43 Rule (1)(r) CPC by
providing that the appeal would be
maintainable under the aforesaid provision
in case any order is passed in exercise of
powers under Proviso to Rule 3. It may
further be noticed that by means of Section
89 of amending Act 104 of 1976 Rule 2-A
was added w.e.f. 1.2.1977 in Order 39 and
also in Order 43 Rule (1)(r) CPC. Clearly,
the legislature has no intention to provide
for appeal under Order 43 Rule (1) (r) CPC
in case any ex-parte injunction is granted
before issuing notice to the opposite parties
in exercise of powers under Proviso to Rule
3 of Order 39 CPC. The reason appears to
be for not inserting Rule 3, wherein Proviso
was added by Amending Act 1976, in
Order 43 Rule (1) (r) CPC can be drawn
from the insertion of Rule 3-A in Order 39
CPC by the same amending Act, whereby it
was provided that the Court is to dispose of
application for injunction within 30 days.
Clearly, the legislature has no intention to
provide for appeal from orders passed
under Order 39 Rule 3 Proviso CPC. The
Hon'ble Full Bench in Zila Parishad,
Budaun (supra) and Hon'ble Supreme
Court in A. Venkatasubbiah Naidu
(supra) have held that such appeal is
maintainable.
The
judgment
in
Zila
Parishad, Budaun (supra) was rendered by
Hon'ble Apex Court in the year 1970 and
therefore, the Hon'ble Court had no
occasion to consider the powers provided
to the trial court under Proviso added to
Rule 3 of Order 39 CPC in the year 1976.
Insofar as maintainability of appeal against
ex-parte injunction order under Order 43
Rule (1) (r) CPC is concerned, even
Hon'ble Apex Court in the case of A.
Venkatasubbiah Naidu (supra) has held that
appeal is maintainable. However, in case
any such appeal is preferred the appellate
court shall be obliged to entertain the
appeal as maintainable and further to take
note of the omission of the subordinate
court in complying with the provision of
Order 39 Rule 3-A CPC. It is very pertinent
to note that this observation has given after
the observation made by Hon'ble Supreme
Court in the aforesaid case that in a case
where mandate of Order 39 Rule 3-A of the
Code is flouted, the aggrieved party shall
be
entitled
to
right
of
appeal
notwithstanding the pendency of the
application for grant or vacation of a
temporary injunction, against the order
remaining in force. A. Venkatasubbiah
Naidu (supra) is a case from State of
Tamil Nadu, where provision of Order 39
Rule 3-A CPC are applicable, which is not
so in the State of Uttar Pradesh. The
observations of the Hon'ble Supreme Court
are, therefore, heavily in favour of
entertaining the appeal after 30 days in
view of provision of Rule 3-A, which has
been extensively considered by the Hon'ble
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court, which, in fact, is not
applicable in the present case.

23. There is another aspect of the
matter, no doubt, it cannot be held that the
appeal against such ex-parte injunction or
inaction on the part of the trial court in not
deciding the application for grant of
temporary injunction for long would not be
maintainable. The same would be clearly
maintainable in the light of judgments as
noted above, however, such appeal can be
entertained only when glaring facts are
reflected on the part of the trial court in its
action
or
omission
as
held
in
A.
Venkatasubbiah Naidu (supra).

24. Thus, although Order 39 Rule 3
CPC is not included in Order 43 Rule (1)
(r)
CPC,
however,
same
would
be
maintainable in view of law laid down in
Zila Parishad, Budaun (FB Alld) (supra)
and A. Venkatasubbiah Naidu (supra) by
Hon'ble Supreme Court after 30 days in
States, where Order 39 Rule 3-A CPC is
applicable. However, in the State of U.P.
after six months, in view of the Circular
dated 16.8.2017 issued by this Court for
ensuring the disposal of application of
temporary injunction in six months as the
language of first paragraph of the Circular
dated
16.8.2017
reflects
the
same
sentiments and intention as reflected in
Order 39 Rule 3-A CPC.

25.

Therefore,
to
my
mind,
maintainability of misc. appeal under Order
43 Rule (1) (r) CPC before six months
cannot be claimed and hence, the same
would not be maintainable.

26. Since, maintainability of such
appeal against order passed in exercise of
powers under Proviso to Rule 3 of Order 39
CPC does not come from the statutory
provision i.e. Order 43 Rule (1) (r) CPC but
is as per or comes from the judgments
rendered, therefore, even if such appeal is
maintainable, it has to be seen when it can
be entertained.

27. To my mind, there is a difference
in "maintainability" and "entertainability".
The misc. appeal may be 'maintainable' but
the same can be 'entertained' only on the
parameters set out in the relevant statutory
provisions and if there is no such provision
of law available, then as per the law laid
down by the Courts.

28. A reference may be made to a
judgment of Hon'ble Supreme Court in the
case of M/s Lakshmiratan Engineering
Works Ltd. vs. Asst. Commissioner
(Judicial) I, Sales Tax, Kanpur Range,
Kanpur and another AIR 1968 SC 448,
paragraphs 7 to 10 whereof are quoted as
under:-

"(7) To begin with it must be noticed
that the proviso merely requires that the
appeal shall not be entertained unless it is
accompanied by satisfactory proof of the
payment of the amount of tax admitted by
the appellant to be due. A question thus
arises what is the meaning of the word
'entertained' in this context? Does it mean
that no appeal shall be received or filed or
does it mean that no appeal shall be
admitted or heard and disposed of unless
satisfactory
proof
is
available?
The
dictionary meaning of the word 'entertain'
was brought to our notice by the parties,
and both sides agreed that it means either
"to deal with or admit to consideration".
We are also of the same opinion. The
question, therefore, is at what stage can the
appeal be said to be entertained for the
purpose of the application of the proviso? It
is 'entertained' when it is filed or is it
1 All. Gurmej Singh & Ors. Vs. Ranjit Kaur & Ors.
1035
finally 'entertained' when it is admitted and
the date is fixed for hearing or is it finally
'entertained' when it is heard and disposed
of? Numerous cases exist in the law reports
in which the word 'entertained' or similar
cognate expressions have been interpreted
by the courts. Some of them from the
Allahabad High Court itself have been
brought to our notice and we shall deal
with them in due course. For the present,
we must say that if the legislature intended
that the word 'file' or 'receive' was to be
used, there was no difficulty in using those
words. In some of the statutes which were
brought to our notice such expressions have
in fact been used. For example, under
Order 41, Rule 1 of the Code of Civil
Procedure it is stated that a memorandum
shall not be filed or presented unless it is
accompanied etc., in S. 17 of the Small
Causes Courts Act, the expression is 'at the
time of presenting the application'. In
Section 6 of the Court Fees Act, the words
are 'file' or 'shall be received'. It would
appear from this that the legislature was not
at a loss for words if it had wanted to
express itself in such forceful manner as is
now suggested by counsel for the State. It
has used the word 'entertain' and it must be
accepted that it has used it advisedly. This
word has come in for examination in some
of the cases of the Allahabad High Court
and we shall now refer to them.

(8) In Kundan Lal v. Jagannath Sharma,
AIR 1962 All 547 the Court was concerned
with Order 21, Rule 90, of the Code of Civil
Procedure which had been amended by the
Court by changing the provisions of the
original Code. The changed rule is as follows:

"Provided that no application to set
aside the sale shall be entertained:

(a) upon any ground which should have
been taken by the applicant on or before the
date on which the sale proclamation was
drawn up:

(b) Unless the applicant deposits such
amount not exceeding 121⁄2% of the sum
realised by the sale or furnishes such security
as the court may in its discretion fix, except
when for reasons to be recorded it dispenses
with the requirements of this clause.

(9) The word 'entertain' is explained
by a Divisional Bench of the Allahabad
High Court as denoting the point of time at
which an application to set aside the sale is
heard by the court. The expression
'entertain', it is stated, does not mean the
same thing as the filing of the application
or admission of the application by the
court. A similar view was again taken in
Dhoom chand Jain v. Chamanlal Gupta,
AIR 1962 All 543 in which the learned
Chief Justice Desai and Mr. Justice
Dwivedi gave the same meaning to the
expression 'entertain'. It is observed by
Dwivedi, J. that the word 'entertain' in its
application bears the meaning 'admitting to
consideration', and therefore when the court
cannot refuse to take an application which
is backed by deposit or security, it cannot
refuse judicially to consider it. In a single
bench decision of the same court reported
in Bawan Ram v. Kunj Beharilal, AIR 1962
All 42 one of us (Bhargava J.) had to
consider the same rule. There the deposit
had not been made within the period of
limitation and the question had arisen
whether the court could entertain the
application or not. It was decided that the
application
could
not
be
entertained
because proviso (b) debarred the court from
entertaining
an
objection
unless
the
requirement of depositing the amount or
furnishing security was complied with
within the time prescribed. In that case the
word 'entertain' is not interpreted but it is
held that the court cannot proceed to
consider the application in the absence of
deposit made within the time allowed by
law. This case turned on the fact that the
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
deposit was made out of time. In yet
another case of the Allahabad High Court
reported in Haji Rahim Bux and Sons v.
Firm Samiullah and Sons, AIR 1963 All
320 a Division Bench consisting of Chief
Justice Desai and Mr. Justice S.D. Singh
interpreted the words of O. 21, R. 90, by
saying that the word 'entertain' meant not
'receive' or 'accept' but 'proceed to consider
on merits' or 'adjudicate upon'.

(10) In our opinion these cases have
taken a correct view of the word 'entertain'
which according to dictionary also means
'admit to consideration'. It would therefore
appear that the direction to the court in the
proviso to S. 9 is that the court shall not
proceed to admit to consideration an appeal
which is not accompanied by satisfactory
proof of the payment of the admitted tax.
This will be when the case is taken up by
the court for the first time. In the decision
on which the Assistant Commissioner
relied, the learned Chief Justice (Desai
C.J.) holds that the words "accompanied
by" showed that something tangible had to
accompany the memorandum of appeal. If
the memorandum of appeal had to be
accompanied by satisfactory proof, it had to
be in the shape of something tangible,
because no intangible thing can accompany
a document like the memorandum of
appeal. In our opinion, making 'an appeal'
the equivalent of the memorandum of
appeal is not sound. Even under O. 41 of
the
Code
of
Civil
Procedure,
the
expressions "appeal" and "memorandum of
appeal" are used to denote two distinct
things. In Wharton's Law Lexicon, the
word "appeal" is defined as the judicial
examination of the decision by a higher
Court of the decision of an inferior court.
The appeal is the judicial examination; the
memorandum of appeal contains the
grounds on which the judicial examination
is invited. For purposes of limitation and
for purposes of the rules of the Court it is
required that a written memorandum of
appeal shall be filed. When the proviso
speaks of the entertainment of the appeal, it
means that the appeal such as was filed will
not be admitted to consideration unless
there is satisfactory proof available of the
making of the deposit of admitted tax."

(emphasis supplied)

29. From the discussions made
hereinabove, such misc. appeal can be
entertained
only
if
it
satisfies
the
parameters set by the judgments of the
courts and not otherwise as the appellate
court is under obligation to record reasons
for entertaining the same as set out in A.
Venkatasubbiah Naidu (supra).

30. No such action or omission on the
part of the trial court exist in this case. On
the contrary, in the light of Proviso to Rule
3 of Order 39 CPC reasons have been
recorded by the trial court and directions
were given to take steps, which were also
taken by the plaintiff and defendant was
duly served the notices. Hence, in view of
the
observation
made
in
A.
Venkatasubbiah Naidu (supra) not only
the appeal was not maintainable but also
there was no occasion to entertain the misc.
appeal by the lower appellate court.

31. In my opinion, in any case, such
appeal cannot be entertained in a routine
manner and in no manner if filed by the
defendant when after service of notice he
has not put in appearance before the trial
court to contest the temporary injunction
application and has not filed objection to
the same.

32. There is yet another aspect of the
matter. Before Hon'ble Full Bench in Zila
Parishad, Budaun (supra) two following
1 All. Gurmej Singh & Ors. Vs. Ranjit Kaur & Ors.
1037
questions were referred for consideration
by the Full Bench:-

"(1) Whether the ex parte order issuing
injunction
against
the
defendants
is
appealable in the circumstances of this
case?

(2) If the order is appealable can the
appellant rely on fresh evidence which was
not before the trial court?"

33. The question no. 1 was held in
affirmative. The question no. 2 was
answered as under:-

"The appellant as a matter of right
cannot rely on fresh evidence in appeal
which was not before the trial court until it
is admitted by the appellate Court under
Order 41, Rule 27, CPC."
 (emphasis supplied)

34. Thus, there is yet another aspect
of the matter insofar as merit of the case is
concerned. In the case of Zila Parishad,
Budaun (supra) while answering the Court
question no. 2 it was held that the appellant
as a matter of right cannot rely on fresh
evidence in appeal which was not before
the trial court until it is admitted by the
appellate court under Order 41 Rule 27
CPC.

35. In the present case, even before the
date fixed by the trial court, without putting
in appearance in the trial court, the misc.
appeal was filed and from perusal of the
lower appellate court order it is reflected that
the evidence on affidavit was filed by the
parties (including the defendant) and was
accepted by the lower appellate court also as
such, and not under Order 41 Rule 27 CPC
by recording reasons for accepting the same.
This is clearly contrary to the intention as
reflected in the answer given by the Hon'ble
Full Bench to question no. 2 as already noted
above in this judgment.

36.