2023 PLP 1198 (CLC)

ABDUL HAMEED BALOCH, J.

This Civil Revision Petition is directed against the order dated 12.012022, passed by learned Additional District Judge-IX, (Vacation Judge) Quetta (appellate Court), whereby the appeal filed by the respondent against the order dated 08th January, 2022, passed by learned Judicial Magistrate-II/MTMC-VII, Quetta (trial Court) on an application under Order XXXIX, Rules 1 and 2, C.P.C., in the suit for "Declaration, Preventive and Prohibitory Injunction and Consequential Relief" was allowed.

2. Heard, record perused, the perusal of record reveals that the petitioner/plaintiff filed suit for "Declaration, Preventive and Prohibitory Injunction and Consequential Relief" against the respondents. Along with the suit, the plaintiff also filed an application under Order XXXIX, Rules 1 and 2, C.P.C. The trial court vide order dated 08th January, 2022, accepted the application and pleased to grant ad-interim injunction and issued notice to respondent for 22.01.2022. The defendants / respondents filed an appeal under Order XLIII, Rule 1(r), C.P.C. before the appellate court, which was accepted vide order dated 12.01.2022 and the order dated 08.01.2022, passed by the trial court was suspended. Rule 4 of Order XXXIX, C.P.C. being relevant is reproduced as under:

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

3. Under rule-1(r) of Order XLIII, C.P.C. an order passed under Rules 1, 2, 4 and 10 are appealable order. The trial court under Rule 4 of Order XXXIX, C.P.C. is empower to set-aside or varied the ex-parte interim injunction granted to the plaintiff/petitioner under Order XXXIX, Rule 1, C.P.C. Where the court granted ex-parte ad-interim injunction order, the remedy is provided under Rule 4 of Order XXXIX, C.P.C. before the trial court not by way of filing appeal before appellate court. On refusal of application filed for setting aside/discharge the ex-parte order then under Rule 1(r) of Order XLIII, C.P.C. the party can assail such order by way of filing appeal. An ex-parte interim order of temporary injunction to be become appealable must partake nature of interim order as contemplated under Rule 1(r) of Order XLIII, C.P.C. An ex-parte interim injunction is different from an order of temporary injunction made at the final disposal of the application after both the parties having an opportunity of being heard, An ex-parte interim injunction is merely provisional order. Reliance is placed on the case of M/s. Parijatha and another v. Kamalaksha Nayak and others (KLR 1984 Civil Cases 219)[Karnataka-India], whereby it has been held as under:

15. For the foregoing reasons, we hold that O.43 R.1 (r) of the Code does not allow the filing, of an appeal from an ex parte interim order of temporary injunction granted under R.1 or 2 of O.39, but the remedy of the aggrieved person is to move the trial Court under R.4 of O.39 of the Code in the first instance. We further hold that even a stranger to the suit or proceeding can maintain such application. We hereby overrule the decisions of single Judges taking a view in favour of the permissibility of an appeal against an interim ex parte order of temporary injunction, to wit, Keshavachand Gopalachand Gujjar v. Ningappa Pandappa Kolakar (1969 (2) Mys LJ 525). Bhima Ningappa Khot v. Ratnahbai (Civil Revn. Petn. No.3056 of 1978) and Mahela Samaja v. Snt, Varga Aithal (Civil Revn. Petn. No.2705 of 1978). The case law relied upon by the counsel for respondents is irrelevant. In view of above, the petition is accepted. The order dated 12.01.2022, passed by the appellate court is set-aside. The trial court is directed to decide the pending application under Order XXXIX, Rules 1 and 2, C.P.C. within seven days. SA/42/Bal. Order accordingly.