P L D 1957 (W (PLP)

QADEERUDDTN, J.

This is an appeal from the order of Inamullah, J. dated the 19th of February 1957 passed in exercise of original Civil Jurisdiction on an application for injunction in which a prayer for ad interim orders was made and ex parte orders were asked for. The order consists of one word : it says "Notice", which means notice of the application be given to the opposite party. An appeal has been preferred from this order under Order XLIII, section 104, Civil P. C. and clause 10 of Letters Patent for the High Court of Lahore. Reliance is placed by the counsel for the appellant almost entirely on the judgment of Kaikaus, J. in The Associated Cement Companies, Ltd. v. The Province of Punjab (P L D 1954 Lah.151). This authority is mentioned in the memo of appeal also. It is a judgment passed in an appeal from an order of the Senior Civil Judge, Campbellpur. An application for injunction was made before the Senior Civil judge with the prayer that ad interim injunction during the pendency of the application be granted. The learned Senior Civil judge issued notice to the opposite party to show cause why an injunction during the pendency of the suit should not be granted and refused to grant an injunc tion pending the decision of- the application. A preliminary objection was taken, in the appeal by the respondent that an appeal was not competent from such an order. This objection was over-ruled by the appellate Court. In the appeal before us an application for ad interim injunction was also made on which we issued notice to the opposite party, in response to which Mr. Abdus Salam Faruqi, the learned Advocate of the respondents has appeared and has taken the preliminary objection that the appeal does not lie. We have heard the parties at length. It may be mentioned that the appeal is preferred under Clause 10 of Lahore Letters Patent because an appeal from the order of one learned judge of this Court to a Division Bench does not lie except under Clause 10 of Letters Patent for the High Court of Lahore. Formerly an appeal could be made under section 14 of the Sind Courts Act, 1926 "from any decree or from any order against which an appeal is permitted by any law for the time being in force-made by a single judge of the Chief Court to a Bench consisting of two other judges of the Chief. Court", but as that Act can no longer be availed of by the appellant he has to rely on Clause 10 of Lahore Letters Patent. The argument of Mr. Somjee, the learned counsel for the appellant, is that this appeal falls under clause 10 because any order which is appealable under Order XLIII, Civil P. C., is a judgment within the meaning of this Clause and, in the alter native, because the order in question is otherwise also, a Judgment for the purposes of this Clause. In support of the first part of his argument he has cited Chattyar and another v. Chettyar (I L R 5 Rang. 99) and Dayabhai Jiwandas and others v. A. M. M. Murugappa Chettyar (A I R 1935 Rang. 267 (F.B.)), and in support of the second part of his argument he has cited Sri Raja Vallanki henkanta Chinnayamma Rao Bahadur Zamindarini Garu v. Sri Raja Kotagiri Subbamma Rao Bahadur Zamindarini Gar u (A I R 1925 Mad. 586), Mansata Film Distributors, Calcutta v. Sorab Merwanji Modi (A I R 1955 Born. 266), and clog Dhian v. Hussain and another (A I R 1935 Lah. 328). The two Rangoon rulings clearly support the proposition that where an appeal from an order is permissible under the Civil P. C., the Court would construe such an order to be a 'judgment' within the meaning of Clause 10 of the Letters Patent. Mr. Faruqi has not contested this proposition directly but has contended that the order in question is not appealable under Order XLIII of the Civil P. C. and has relied on H. Bevis & Co., Kanpur v. Ram Behari and others (A I R 1951 All. 8). His answer to the second part of Mr. Somjee's argument is that by no construction can the order under appeal be considered to be a 'judgment' for the purposes of Clause 10 of Lahore Letters Patent. He has generally relied on Vishnu Patrap and others v. Sm. Revati Devi and others (A I R 1953 Al1. 647), Asrumati Devi v. Kumar Rupendra Deb Raikot and others (A I R 1953 S C 198), Murlidas v. Baijnath Das Ramnath Das (A I R 1930 Cal. 623) and T. V. Tuljaram Row v. M. K. R. h. Alagappa Chettiar (I L R 35 Mad. 1). Without entering the controversy which, according to a statement made in 1935 in a Full Bench ruling by Page, C. J. in Dayabhai Jiwandas and others v. Chettyar (2) raged in India for nearly 70 years over the meaning of the word 'judgment', and which, we may add has not been settled till today in spite of his very learned and lucid judgment, without analysing the definitions of the word 'judgment' given by Sir R. Couch in The Justices of the Peace for Calcutta v. The Oriental Gas Co. (8 Beng. L R 433) and by Sir Arnold White in Murlidas v. Baijnath Das-Ramnath Das and without trying to reconcile the explanations given by learned judges of these definitions; we accept for the purposes of this appeal a wide meaning of the word so as to include in it even an order which determines pro tanto the right of a party as held in Mansata Film Distributors, Calcutta v. Sorab Merwanji Modi, and yet find ourselves unable to hold that the order from which this appeal has been preferred is a `judgment' within the meaning of Clause 10 of Letters Patent for the High Court of Lahore. The order, merely directs that notice be given to the opposite party, and we are satisfied that it is not appealable under Clause 10 of Letters Patent unless it is appealable, as contended by the appellant's counsel, under Order XLIII, rule (1) (r) of the Civil P. C. The main question, therefore, is whether or not the Order under appeal is appealable under Order XLIII, Civil P. C., Clause (r) of rule 1 of Order XLIII provides an appeal from an order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX, Civil P. C. Rules 4 and 10 have no application to the present case. The learned Judge has, by .the order under appeal, undoubtedly refused to grant an ex-parte interim injunction which could be granted in terms of rule 3 of Order XXXIX. The point therefore is as to whether his refusal was under rule1, rule 2 or rule

3. The observations in The Associated Cement Companies, Ltd., v. The Province of Punjab (P L D 1954 Lah. 151) on this point are as follows :- "I am of opinion that the order which 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 passed under rules 1 and

2. Rule 3 does not provide for the grant of an injunction. It merely provides a rule of procedure which is to be, observed in making an 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 he very much wants the notice to remain. His grievance is that along with the "notice an order granting interim 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 1 and 2, then the refusal to grant the injunction would also be an order under rules 1 and 2." A reference to rule 3 of Order XXXIX, Civil P. C. would show that it provides something more than the necessity of giving a notice before granting an injunction. The rule is as follows :- 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." According to this provision of law the Court is bound to give a notice in all cases before granting an injunction, but is empowered in those cases alone where it appears to it that the object of granting injunction would be defeated by the delay to grant an injunction without notice to the opposite party. The words "shall in all cases . . . . . direct notice" carry the necessary implication that the Court "shall refuse an ex parse order". The effect of rule 3 is that whenever a prayer for an ex parte injunction is made, the Court must decide whether delay would defeat the object, and if it decides that the delay would not defeat the object, it must refuse to grant injunction without notice. It matters not how strong a case for granting an injunction the applicant may have other wise. In our opinion, with due respect, this is not a matter of mere procedure. But even if it were, the question of prejudicial delay is a question which falls under rule 3 and a decision c that delay would or would not defeat the object is a decision under rule

3. The learned Judge who delivered the judgment reported in The Associated Cement Companies, Ltd. v. The Province of Punjab (P L D 1954 Lab. 151) has supported his view regarding the procedural character of rule 3 as follows :- "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." With utmost respect we may mention that the above observations while taking into consideration the necessity of giving notice before granting an injunction, do not appear to take into account the exception provided in rule 3 which gives a positive authority of a qualified nature to the Court for granting injunctions without notice. We think that we are right in our view also that the mandatory provision contained in rule 3 regarding notice, before granting an injunction is stricter in nature than the require ments of the principles of natural justice. The relevant principle of natural justice namely, that no man should be condemned unheard, will be satisfied if the man likely to be adversely affected by an order gets a "fair opportunity" of answering "the charge against him". The emphasis in this principle is on "opportunity" and in rule 3 on 'notice from Court'. There is no provision corresponding to rule 3 of Order XXXIX in Order XL which deals with the appointment of Receivers, and Broadway, J. has observed in Mst. Ishri v. Shib Ram and others (A I R 1923 Lah. 239), as follows :- "Turning now to the question of the receiver (Appeal No. 480 of 1922) Mr. Badri Das complains that the order appointing a Receiver was made, firstly, without notice and secondly without any necessity. Rule 1 of Order XL does not lay down that notice should issue and it is obvious that in many cases the object of the appointment of a Receiver might well be nullified if notice were issued . . . The question that the Courts have to see in dealing with appli cations under Order' XL, rule 1 is Whether, in the circum stances of the case, the appointment of a Receiver is just and convenient, the main object being to preserve the property. The power is discretionary with the Court, but at the same time this discretion is not to be exercised arbitrarily but in a regulated manner." Moreover, the principle of natural justice is flexible to a certain extent as pointed out by Broom in his legal Maxims. He has quoted the language of an old English authority, which is as follows :- "a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of answering the charge against him, unless indeed the legislature has expressly or impliedly given an authority to act without that necessary preliminary." And further on he says :- "Although cases may be found in the books of decisions under particular statutes which at first sight seem to conflict with the maxim, it will be-found on consideration that they are not inconsistent, with it, for the rule, which is one of elementary justice, only requires that a man shall not be subject to final judgment or to punishment without an opportunity of being heard." (The italics are ours.) We may therefore state respectfully that the non existence of rule 3 of Order XXXIX Civil P. C. might have made an important difference. The order under appeal did decide that injunction was' not to be granted without giving notice to the opposite party. In this order, however, there is no decision involved as to whether injunction itself should be granted or not granted under rule 1 or rule

2. The application for injunction has remained pending. In the words of Desai, J., H. Bevis & Co) Kanpur v. Ram Behari & others. "refusing to grant an ex-parte injunction does not amount to refusing to grant it altogether"-The authority and the discretion to grant ex pai to injunction arises from rule 3 and no appeal is provided under Order XLIII, Civil P. C. from orders passed under rule

3. The Allahabad case from which we have taken the above noted observation of Desai, J. was an appeal before a Division Bench. The facts were that an application for injunction was made in the Court of the Civil Judge, Cawnpore, and the prayer was only for ad interim injunction. The Court passed the following order :- "Civil Court Vacation is near at hand. In this case intricate questions of law are involved and I cannot issue even an ex parte injunction off hand. Both the parties are to be heard on the date to be fixed for hearing of injunction application. Applicant wants an injunction against the Government's award. Order rejected." From this order an appeal was preferred, which was heard by Mushtaq Ahmad and Desai, JJ. of the Allahabad High Court. They disagreed amongst themselves. According to Mushtaq Ahmad, J. the appeal was competent, but accord ing to Desai, J. it was not competent. The matter was, therefore, referred to a third judge, namely Agarwala, J. He decided that an appeal was not competent. Some of his observations are as follows :- "It is clear from a reading of rules 1 to 4 that whenever an ex parte injunction is issued, the application is disposed of finally and the order is one made under rule 1 or rule 2 as the case may be. But when the Court does not think that "the object of granting the injunction would be defeated by the delay", and issues a notice of the application to the opposite party, it does not dispose of the application made under rule 1 or rule

2. That application is still pending and will be disposed of after hearing the opposite party in pursuance, of the notice issued to him." "I. therefore, think that when the Court refuses to grant an ex parte injunction and issues notice to the other side of the application for injunction, it has passed no order under rule 1 or rule 2 and, therefore, no appeal can lie from such an order. But where the Court grants the application for injunction ex parte, an appeal lies because the application made under rule 1 or rule 2 is disposed of." We have no hesitation in agreeing with the proposition that an appeal lies from an ex parte order granting an injunction. There seems to be no divergence of views on this point. L. D. Meston School Society v. Keshi Nath Misra (A I R 1951 All. 558) is one of the rulings on this proposition and was cited by the counsel of the appellant. When an injunction is issued the stage of 'ex parte' or 'after notice' is passed and jurisdiction is exercised under rule 1 or rule

2. The same would be true if an application for injunction, as distinguished from an application or prayer for ex parte orders, is dismissed and disposed of without giving notice to the opposite party. In the view that a refusal to grant a prayer for ex parte injunction is only a refusal under rule 3 and that no appeal lies from such a refusal we are further supported by S. D. Annamalai Desikar v. M. R. Govinda Rao (A I R 1924 Mad. 857) and Luis and others v. Luis (I L R 12 Mad. 186). In the latter case Wilkinson and Shephard, JJ. have observed as follows :- "The Subordinate Judge, as required by section 494, resolved, before granting the temporary injunction to issue notice to the defendants. Such order was one made under section 494, and there is no provision under section 588 for an appeal from such an order. It is argued that, inasmuch as the plaintiff stated that the object of granting the injunction would be defeated by the delay, the order of the subordinate judge was virtually an order refusing the prayer for an injunction and that therefore an appeal lay; We are unable to concede this. The order made by the subordinate Judge was not the formal expression of his decision on the question, whether an injunction should be granted or not. A discretion is vested in the Court by section 494, of refusing to grant a temporary injunction will not be defeated thereby, and no appeal is provided in case of his refusal." We have seen the case of Shyam Behari Singh v. B. Biseswar Dayal Singh and others (A I R 1924 Pat. 713) and Balabh Das Kothari v. M. Muhammad Ishaq and others (A I R 1923 Lah. 282). The Lahore case is not an authority against our point of view as would be clear from the following observations:- "A preliminary objection was raised that no appeal was competent as the learned Subordinate Judge had issued notice to the defendants to show cause against the injunction. But this only meant that the injunction would have been cancelled if sufficient cause were shown. As the injunction had been granted and would have remained in force till cancellation, an appeal was, in my opinion, competent under Order LXII (1) (r), Civil P. C." The question of passing ex parts orders was not considered in it. The Patna case was an appeal from an order of a Subordinate judge refusing to grant an injunction pending the disposal of the application for an ad interim injunction till the disposal of the suit. It was contended in this case that appeal was not competent as no final order, disposing of the application had been passed. The Court repelled the contention and held :- "It is now settled that an appeal lies from an order granting an injunction as well as from an order refusing an injunction, vide Hari Lai v. Prayag Ram (A I R 1923 Lah. 282) and Lachmi Narain v. Ram Charan Das ((1913) 35 All. 425). This is, however, not the point in the present case. The point is whether an order refusing an application for a temporary injunction until the disposal of the main application for injunction pending the disposal of the suit is an order under Order XXXIX, rule 1 of the Civil P. C: That rule says that upon the conditions mentioned in clauses (a) and (b) "the Court may by order grant" a temporary injunction to restrain such act, or make other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders." There is therefore, ample provision for orders until "the disposal of the suit" as well as for orders "until further orders." Hence the order granting or refusing a temporary injunction pending the disposal of the main application will also come under this provision. It would seem that but for this provision mischief may be done to the properties in the interval between the order refusing a temporary injunction pending the disposal of the main application and the final order granting the injunction, and thus the object of the final order passed in the main application might be wholly frustrated. The Code therefore provides in Order XLIII rule 1 (r) for an appeal from all orders interlocutory and final passed under Order XXXIX, rule 1 granting or refusing an injunction." The question of granting injunction without giving notice apparently did not arise in this case. The application for an injunction pending the disposal of the main application was not kept pending but was apparently rejected and disposed of. The situation would have been different if the application was kept pending and notice was given to the opposite party before rejecting it. There is a reference in the above quoted order to the words "until further orders", and it is stated that granting or refusing a temporary injunction pending the disposal of the main application also comes under Order XXXIX, rule

1. It is true that the Court has the power under rule 1 to grant an injunction until the disposal of the suit or until further orders. But as pointed out by Desai, J. in A I R (1951) All. 8, at p. 11, "The words 'until further orders' in rule 1 have no bearing on the point under discus sion they only mean that the Court has full liberty over the duration of temporary injunction. It can grant an injunction, either for the whole duration of the suit or up to a certain date." From .the words 'until further orders' it does not appear to be inferable that the Court is relieved of the duty of giving notice to the opposite party on the ground that the duration of the injunction will be short. The only ground on which an injunction can be granted without notice to the opposite party is that "the object of granting the injunction would be defeated by the delay". The idea of 'delay' in the context refers to the postponement of the disposal of the application for giving notice, and has no reference to the period of time in which an injunction may subsist. We should not omit to mention here that the discretion given to the Court under rule 3 is a jurisdiction which is to be exercised judicially. As pointed out by Agarwala, J. in A I R (1951) All. 8, at p. 15, "The Court has to see, when requested to grant an ex parte injunction, as to whether the object of granting the injunction would be defeated by delay or not. If it fails to apply its mind, then it acts illegally and with material irregularity in the exercise of its jurisdiction, and although an appeal may not lie, a revision may lie." The counsel of the appellant had faintly suggested that the appeal before us might be treated to be a revision application, but the question of revisional jurisdiction cannot arise in this appeal because a revision application from the order of one judge of this Court to another judge or morel judges of this Court is not competent. We therefore hold that the appeal is not competent and dismiss it with costs. A. H. Appeal dismissed.