P L D 1954 Lahore 151 (PLP)

KAIKAUS, J.‑Under the provisions of the Industrial Disputes Act the Punjab Government by Notification No. 7857‑Ind. 51‑50340 dated the 16th of August 1951 referred an alleged industrial dispute between the Wah Cement Works and the employees of the Wah Cement Works to an industrial tribunal constituted by Malik Ahmad Khan, P. C. S., District and Sessions Judge, Campbellpur. The corporation which owns the Wah Cement Works filed a suit against the Punjab Province alleging that an award had been made by the tribunal and asking for a declaration that the award of the tribunal was null and void as well as for an injunction restraining the Punjab Government) from publishing or otherwise sting on the award. A number of grounds were mentioned for the lea that the award was void and ineffective. Along with the Plaint was filed an application for an injunction to the Punjab Government restraining it from publishing the award or acting on it till the decision of the suit. There was also a prayer that an interim injunction during the pendency of the application for injunction be granted. On the 9th of May 1953 the learned Senior Civil Judge, Campbellpur, who was hearing the suit, issued notice to the Punjab Government to show cause why an injunction during the pendency of the suit should not be granted. He refused, however, to grant an interim injunction pending the decision of the application for injunction. Against this order the plaintiff filed a revision petition which was dismissed by S. A. Rahman J., on the 16th of July 1953 on the ground that there had as yet been no final order, The plaintiff subsequently filed the present appeal against the very same order. A preliminary objection is taken by the respondent that no appeal lies. The relevant provision under which this appeal has been preferred is Order 43 r. 1 (r), C. P. C., by which an appeal lies, against an order passed under rules 1, 2, 4 and 10 of Order

39. Learned counsel for the respondent urges that the present order is not under rule 2 as claimed by the plaintiff appellant but under rule 3 and, therefore, not appealable. From a perusal of Order 39 it appears that rules 1 and 2 provide for the issue of injunctions in the cases that are mentioned in the two rules. Rule 3 provides that in all cases where an injunc tion is to be issued, a notice should be given to the opposite party unless the case is one where the object of granting injunction would be defeated by the delay. The short question which I have to decide is whether the present order, an appeal against which has been filed, is one made under rule 2 or rule

3. The position taken up by the appellant, and which I regard as correct, is that this is an order reusing to grant an injunction pending the decision of the application for injunction. I am of opinion that the order which a Court passes either refusing or allowing an injunction whether that order relates to an interim injunction as in the present case or to a temporary injunction for the pendency of the suit must be under rules 1 or

2. Rule 3 does not provide for that a grant of an injunction. It merely provides a rule of procedures whist, is to be observed in making in order. It provides for the issue of a notice to the opposite party. If the appeal be directed against the notice itself, for instance, if the defendant were to file an appeal saying that even a notice should not have been issued, the appeal would be incompetent, for the order of notice itself does not fall under rules 1 or

2. But it is not that part of the order against which the present appellant complains. He does not say that the notice should not have been issued. On the other hand and, he very much want the notice to remain. His grievance is that along with the no order grating interim in injunction should also have been passed. It is the refusal to make that order that is the reason for his appeal. If the jurisdiction to grant interim injunction existed under rule 3, the refusal would be an order under rule

3. On the other hand if the jurisdiction to grant injunction exists under rules l or 2 then the refusal to grant the Counsel for the respondent concedes that an order, under rules 1 or

2. Learned Counsel for tile respondent concedes that an order granting an interim injunction for the pendency of application for injunction would be an order under rules 1 or

2. Rules 1 and 2 are not con fined to injunctions granted for the whole period of the pendency of the suit. Both rules are wide in their terms. Rule 1 provides for any order passed for preventing waste etc. Rule 2 clarifies that the duration of the injunction and the terms on which it is issued are in discretion of Court. So the grant of an interim injunction of the kind asked for in this case would fall under these two rules. I cannot agree that whereas the grant of the injunction would be under rules 1 or 2, the refusal of that very injunction would be under rule

3. Ordinarily, and in the absence of a special provision, if a Court has power to make a particular order under a particular rule, the order as well as refusal to make that order will both falls under the same rule, and if an appeal is provided with respect to, orders under that rule, both kinds of orders would be covered. Learned Counsel for the respondent has relied on two cases which do support him. They are S. D. Annamalai Dasikar v. N. R. Govinda Rao (A I R 1.924 Mad. 857.) and Luis and others v. Luis (I L R 12 Mad. 186,). In the first case there is no discussion at all, the judgment being very short. In the second case too all that is stated is that the learned Subordinate judge had not yet made an order and that is no appeal provided for the exercise of discretion by the learned Subordinate Judge as to whether he will make any order without first issuing notice. But the exercise of this discretion has also the effect of reusing an‑interim injunction. In fact in the case before me the learned Sub‑Judge as in so many words refused to grant an interim injunction. The only question for decision is whether such a refusal is an order under rules 1 and 2 or under rule

3. I have already said that in my opinion whether an order be passed without notices with notice it does not fall under rule 3, which only enacts a rule of procedure. Even if there was no rule 3, no order could, on principles of natural justice, have been passed against the opposite party without giving him an opportunity of contesting the order. Had rule 3 not existed, it would not have been possible to argue that an interim injunction of the kind with which we are concerned was not refused under rules 1 or

2. I do not think that the addition of rule 3 which only expressly states a principle already applicable makes any difference. I respectfully agree with the view taken in Shyam Behari Singh v. F. Biseswar Dayal. Singh (A I R 1924 Pat. 713.) that an order like the one before me is open to appeal. The object of the Legis lature in providing an appeal wit respect to rules 1, 2, 4 and 10 of Order 39 appears to be that in all cases where a party has been either granted or refused an injunction there should be a right of appeal. Rule 3 has not been referred to in Order 43, rule 1 (r) because it does not by itself provide either for the grant or for the refusal of the injunction. Rule 4 also relates to an order dis charging, varying or setting aside an injunction, and an order under rule 10 relates to a direction given to deposit money in Court. A judgment of this High Court in Balabh Das Kothari v. M. Muhammad Ishaq (A I R 1933 Lah, 282.) would also support the contention of the appellant. It was pointed out in that case that when a temporary injunction is issued along with a notice, the party concerned may either appeal against the temporary injunction or appear before the Court issuing notice to show cause against the injunction. I overrule the preliminary objection. The merits need not detain us long. The scope of an appeal like the present is very limited. I am not to decide whether an injunction should or should not be issued for the pendency of the suit. All that I have to consider is whether till the decision of a application for injunction by the learned Senior Civil Judge there should be an interim order or not. I have no doubt that there should be such an order. If the learned Senior Civil judge was of opinion that this application for injunction does merit consideration, it would haste been quite proper to order, that till this application is decided the defendant be restrained from the act complained of. Otherwise the application could have been easily rendered in infructuous by the defendant after receipt of notice to show cause. If the Punjab Province bad published the award after receipt of notice, that would have amounted to a dismissal of the application of the plaintiff for injunction. The learned Civil judge has remarked, however, and the same contention is being pressed before me, that as according to the allegation of the plaintiff the award is wholly void and ineffective, its publication will have no legal effect and, therefore, the plaintiff does not. stand to lose. I am unable to accede to this argument. If the learned Senior. Civil judge was of opinion that it did not affect the plaintiff at all, there was no reason why he should have issued notice to the defendant. If he did issue notice, it implied that the subject‑matter of the plaintiff's application was such as required consideration. Also, the mere fact that the award is wholly void and illegal does not necessarily mean that there should be no injunction with respect to it and that its publication would not harm the plaintiff. After all the publication would be an Act of the Government which` would be regarded prima facie legal till some defect is pointed out, and award may create many complications. I think, therefore, that it is a fit case in which an interim order should be made. Learned Counsel appearing for the respondent states that, as a matter of fact, no award has yet been made by the tribunal and, therefore, really the application of the plaintiff is without any basis. But if that be so, it is obvious that the defendant has not in any way suffered by the injunction. Although the mere fact that the defendant does not suffer is not by itself sufficient reason for granting an injunction, that is a matter which is to be taken into consideration along with other circumstances. I accept this appeal and order that till the decision of the application for injunction filed by the plaintiff the defendant shall be restrained from accepting or publishing the award made by the Industrial Tribunal. It is necessary, however, that this case be expedited. I have directed the parties to appear before the trial Court on the 30th November, 1953 which date, I understand, the learned Senior Civil judge has already fixed for deciding the application of the plaintiff. He shall decide it on that date or as soon as possible afterwards. The records of the lower Court shall be sent back without delay so as to reach the trial Court before the 30th November. There will be no order as to costs of this appeal. A. H. Appeal accepted