P L D 1956 Karachi 429 (PLP)

AGHA, AC. C, J.

‑These are appeals against the order of Mr. Justice Inamullah, granting an ad‑interim injunction. The suits were filed for the grant of permanent injunction, restraining the defendants from holding re‑polling in the election in certain Wards of the Karachi Municipal Corpora tion. Along with the suits an application was filed under O. III, rules 1 and 2 Civil P. C., praying that a temporary injunction may be granted. The learned Judge passed the following order on these applications :‑ " I heard the learned counsel for both the patties, and I grant ad‑interim injunction restraining the defendant from holding re‑polling in election of Ward . . . . . ." A preliminary point has been raised by the respondents that no appeal lies against this order because it is not a final order. The admitted position is that the learned Judge has fixed a date for the final disposal of the application under O. XXXIX, rules 1 and 2, Civil P. C., as he wishes to hear the parties before confirming or discharging the ad‑interim injunction. We have heard Messrs Ormond, Wahiduddin and Mansur Alam for the appellants and Messrs Sohail and Mohsin Siddiqi for the respondents. The contention of Messrs Sohail and Mohsin Siddiqi is that this order is not a final order, and, therefore, no appeal lies against it. The contention of the other side is that an appeal clearly lies against this order, under O. XLIII. rule 1 sub‑clause (r). O. XLIII, rule 1 sub‑clause (r) reads "An appeal shall lie from the following orders under the provisions of section 104, namely :‑ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * "(r) an order under rule 1, rule 2, rule 4 or rule 10 of O. XXXIX." No authorities have been cited by the respondents to support their contention that no appeal lies. They have relied on rule 76 of the rules of the Chief Court of Sind on the Original Side and the decision in the case of Teoomal v. Giyanomal and others (A I R 1927 Sind 202). In that case the order passed was :‑ " I consider this is a fit case for the appointment of a Receiver." No receiver has been appointed by name, and the decision was that no appeal lies from this order, because it was merely an opinion or reason for appointing a receiver in due course. No appointment of any particular receiver had actually been made. The case, therefore, has no bearing on the present appeal. Coming to the question of rule 76 of this Court, it reads as under :‑‑ "

76. Procedure applying for interim relief--‑Notwithstand ing anything contained in rule 123, the plaintiff may move the Court ex‑parte for interim relief on the ground of urgency and the Court on such application may, if it shall think fit grant interim relief on such terms as shall seem just." This Rule is more or less identical with O. XXXIX, rule 3, and it only prescribes the procedure in certain cases It makes a reference to Rule 123, which says that ordinarily a notice should be issued to the other party interested before passing any interim order. Rule 76 makes an exception in h case where an ex‑parte order before issue of notice can be passed. The provisions of O. XXXIX, rule 3 are similar, and this rule 76 of this Court does not give any power to the Court for issuing ad‑interim injunction or passing any order, which is not possessed by the Court under the Civil P. C. Rule 76 merely lays down the procedure to be followed. The Order, therefore, is clearly made under O. XXXIX, rule 2, Civil P. C., and not under rule 76 of the Rules of the Chief Court of Sind. A number of authorities have been cited by the appellants that this Order issuing an ad‑interim injunction is appealable, because it is a final order. The authorities relied upon by them are the cases of Balabh Das Kothari and others v M. Muhammad Ishaq and others (A I R 1933 Lah. 282), Harikishan Lal & Sons v, Peoples Bank of Northern India, Ltd. (A I R 1936 Lah. 102), L. D. Meston School Society v. Kashi Nath Misra (A I R 1951 All. 558) and Saraju Prashad Singh v. Gangaprasad Shah and others (A I R 1951 Cal. 446). Coming to the Lahore cases, the case of Balabh Das Kothari and others v. M. Muhammad Ishaq and others is a case in which a temporary injunction had been granted after the institution of the suit, and thereafter notice had been directed to be issued to the other side. The relevant passage reads as under :‑ "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 O. XLIII (1) (r), Civil P. C." On this ground it was held that the order was appealable. In the next Lahore case, Harikishan Lal and Sons v. Peoples Bank of Northern India Ltd., a Receiver was appointed by an ad‑interim order, and it was held that the order was appealable. The relevant passage is :‑ "For the plaintiff Bank Mr. Kishen Dayal urged here that an appeal does not lie, but I am of opinion that the mere fact that the appointment was made ad‑interim does not mean that the order was not an order under O. XL, rule 1 and an appeal will, therefore, lie under O. XLIII, rule 1 (s) in the same manner as if the appointment had been not ad‑interim, but final." Coming to the Calcutta case of Saraju Prashad Sing v. Gangaprasad Shah and others, in that case an ad‑interim injunction order was passed and notice was also issued. It was held there that the order was appealable. The relevant passage in the judgment reads :‑ " In our opinion, the argument confuses the temporary and limited nature of the injunction with the question of the finality of the order itself. The order, so far as it ran, though it was an order for an injunction for a limited period was clearly final. The plaintiff wanted to restrain the opposite parties immediately from the time of filing of his plaint and for ever. The period may be divided into three parts : first, he wanted an immediate order to operate at once and temporary until the Court could give notice and hear the remaining defendants ; secondly an order to cover the period from the time of hearing ‑the defendant till the final disposal of the suit ; and thirdly, an order in the suit itself for a permanent injunction. Each of the orders would be a final order so far as it went. In our opinion, the ad‑interim injunction was clearly one made under O. XXXIX, rule 2, and was appealable under O. XLIII, rule 1, Civil P. C." Coming to the Allahabad cases, the case cited of H. Bevis and Co. Kanpur v. Ram Behari and others (A I R (38) 1951 All. 8) related to an order refusing of an ad‑interim injunction ; it does not relate to the issue of an ad‑interim injunction, but some of the reason ing given in this matter may be quoted here with advantage. The matter was first heard by Mushtaq Ahmad and Desai. JJ, who disagreed, and it was finally referred to Agarwal, J. At Page 14 he has in his judgment said :‑ " 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." In the second Allahabad case reported in L. D. Mestom School Society v. Kashi Nath Misra (A I R (38) 1951 All. 558), it has been held that when a Court passes an ex‑parse order of injunction it is to be construed as an order passed under rule 1 or rule 2 of O. XXXIX, and as such an appeal lies under O. XLIII, rule 1 (r). The relevant passage in the judgment reads :‑ " A preliminary objection to the hearing of the appeals has been taken on behalf of the plaintiff respondent. It is urged that both the orders appealed against were ad‑interim orders and not final orders, and as such no appeal lies against them. There is no force in this contention. A reading of rules 1, 2, 3, and 4 of O. XXXIX, Civil P. C., shows that the procedure laid down by the Code is as follows: When an application is made by a party for the issue of an injunction under rule 1 or rule 2 of O. XXXIX, the Court is directed by rule 3 to issue notice to the opposite party except when it considers that the delay in issuing the injunction will defeat the object of granting an injunction. If the Court finds that the object of granting an injunction will be defeated by the delay, it is authorised to pass an ex‑pane order of injunction. When it passes an ex‑parse order of injunction no notice is provided for to be issued to the opposite party. But the opposite party is given an opportunity under rule 4 to move the Court for the discharge, variation or setting aside of the order of injunction issued ex‑parse. It follows, therefore, that when the Court passes an ex‑parse order after exercising the discre tion vested in it under rule 3, it passes an order under rule 1 or rule 2 and as the Court does not contemplate that notice be issued to the opposite party of the application made under rule 1 or rule 2, when the Court decides to proceed ex‑parte, the application is for the time being finally disposed of, liberty being reserved to the other side to make application under rule

4. Whenever, therefore, a Court passes an ex‑parte order of injunction, it is to be construed as an order passed under rule 1 or 2 and, as such an appeal lies under O. XLIII, rule 1 (r), Civil P. C There is an authority in support of this view, vide, Amolak Ram v. Sahib Singh (7 All. 550 A W N 128). From these cases. with the reasoning of which I agree, it is very clear that an order granting a temporary injunction, even if made ad‑interim, is an order which is appealable. The only contention of the respondents is, as said above, that this order is passed under Rule 76 of the Rules of this Court, and that, therefore, it is not appealable. There is, however, no justification for holding that this Rule gives any fresh power to the Court for issuing an injunction ; it merely lays down the procedure which is similar to the one laid down in O. XXXIX, Rule

3. I am, therefore, of opinion that an appeal does lies against the present Order passed by Inamullah, J. VELLANI, J.‑‑I regret to say I have arrived at a different conclusion. Under O. XXXIX, rule 2 sub‑rule (1) the plaintiff' may apply to the Court for a temporary injunction and under sub‑rule (2) the Court may by order grant such an injunction. The word "such" makes it clear that a temporary injunction is meant. Rule 3 requires the Court in all cases to direct notice of the application to be given to the opposite party before granting a temporary injunction except when it appears that the object of granting it will be defeated by the delay. When a case falls within the exception a temporary injunction is made ex‑parse, i.e., without notice to the opposite party. It is pertinent to observe that an order granting or refusing an ex‑parte temporary injunction under rule 3 of O. XXXIX, is not appealable under clause (r) of Rule 1 of O. XLIII, Civil P. C. The remedy for an ex‑pane temporary injunction is provided in Rule 4 of O. XXXIX, an order under which is appealable. Taking these provisions into account it is manifest that the law has made non‑appealable an order made without notice to the opposite party, the purpose of the notice being to enable it to show cause against the grant of a temporary injunction. These provisions ensure that the Appellate Court has before it on appeal only those orders which have been made by the Court of first instance after the opposite side has shown cause. I now come to the Rules of this Court. In part II Chapter 4 headed "General Practice and Procedure", there appears Rule 76 under the sub‑head " Interlocutory Proceed ings". It reads :‑‑ "Notwithstanding anything contained in rule 123, the plaintiff may move the Court ex‑parse for interim relief on the ground of urgency and the Court on such application may, if it shall think fit, grant interim relief on such terms as shall seem just." Rule 123 reads as follows :‑ "Except in cases in which a party is entitled as a matter of right and of course to the order asked for in a petition, notice shall ordinarily be issued to the other party interested to show cause why the order asked for should not be granted. If a party making an application desires that the order asked for be made without notice to any other party interested, reasons for making the order without such notice shall be set out in the petition." Under these Rules, on filing an interlocutory application a plaintiff in a suit may obtain ad‑interim relief, that is to say, relief pending the service of notice to show cause on the opposite party and the decision of the Court on the appreciation. An application for a temporary injunction is an interlocutory application and proceedings in it are inter locutory proceedings. The object of Rule 76 then is to permit of relief being granted to a plaintiff before notice of his application for a temporary injunction can be served upon a defendant to enable him to show cause, and before the Court can decide what order to make on the application. An order for such an ad‑interim injunction is, therefore, not an order for a temporary injunction under rule 2 of O. XXXIX, for at the stage at which the ad‑interim injunction is granted the Court has not yet decided to grant or refuse a temporary injunction. In all these appeals (except Appeal No. 32 of 1953) the uncontroverted facts are that together with the plaint the plaintiff filed an application under O. XXXIX, Rules 1 and 2, Civil P. C., for a temporary injunction and for an interim injunction pending the disposal of the application ; that the learned judge issued notice for the next day (284h April 1953,) when he heard both sides from 2 p.m., to 4.30 p.m., when he asked the advocate for the appellant how long he wanted to file counter‑affidavits, and two weeks having been asked for, the learned Judge fixed 20th May 1953, for the hearing of the applications, making the identical orders appealed from. These applications for temporary injunction have not yet been decided. In appeal No. 32 of 1953 the learned Judge at 4‑30 p.m., on 28th April 1953, ordered an ad‑interim injunction and notice of the application for temporary injunction, to issue. I now come to the cases adverted to. In Balabh Das Kothari and others v. M. Muhammad Ishaq and others (A 1 R 1933 Lah. 282), the learned Single judge has made no reference to any provision like Rule 76 of this Court, nor considered the effect of Rules 3 and 4 of O. XXXIX. Harikishan Lai and Sons v. Peoples Bank of Northern India Ltd. (A I R 1936 Lah. 102) was a case of a Receiver and is not helpful in the consideration of provisions relating to a temporary injunction. In Saraju Prashad Sing v, Gangaprashad Shah and others (A I R 1951 Cal. 446), the ad‑interim injunction considered was one "pending the hearing of the suit" and "the plaintiff wanted to restrain the opposite parties immediately from the time of filing his plaint and forever". H. Bevis & Co. Kanpur v. Ram Behari and others (A I R 1951 All. 8) the Court of first instance declined to grant an ex‑parte temporary miunction under Rule 3, and on appeal, the third judge Agarwala, J. to whom questions were referred on a difference between Mushtaq Ahmad, J, and Desai, J., held, agreeing with Desai, J., that the order fell under Role 3 and was not appealable. The case was decided on 28th September 1950, but Agarwala, J., made no mention of the case in L. D. Meston School Society v. Kashi Nath Misra (A I R 1951 All. 558), which had been decided nine days earlier on 19th September 1950, when he was sitting with P. L. Bhagarwa, J., the decision in which appears incon sistent with the later decision, because an order either granting or refusing to grant an ex‑parte temporary injunction under Rule 3 has been made non‑appealable under clause (r) of Rule 1 of O. XLIII. Moreover in I L R 7 All. 550, on which the earlier decision relies, it was assumed that an appeal lay against an order granting an ex‑parte injunction, and the question was not there argued or considered. On the other hand Luis and others v. Luis‑‑(I L R 12 Mad. 186), has held that an order refusing an ex‑parte injunction under Rule 3 is not appealable, and has rejected the argument that the refusal amounts to a refusal of the prayer for a temporary injunction. S. D. Annamali Desikar v. M. R. Govinda Rao (A I R 1924 Mad. 857), though brief, is to the same effect. Rule 3 provides for an exceptional injunction and an order granting or refusing it is an order under rule

3. It is immaterial that the mode of granting or refusing it and not its duration has been made the basis of the exception. These considerations lead ‑me to the conclusion that no appeals lies. K. B. A. Appeal dismissed.