w w w . L a w y e r S e r v i c e s . i n



M/s. Konark Infra Solution Pvt. Ltd. v/s Sanjukta Das


Company & Directors' Information:- J T L INFRA LIMITED [Active] CIN = L27106CH1991PLC011536

Company & Directors' Information:- H N COMPANY INFRA PRIVATE LIMITED [Active] CIN = U45201NL2005PTC007743

Company & Directors' Information:- N A R INFRA PRIVATE LIMITED [Active] CIN = U45209TG2010PTC066556

Company & Directors' Information:- T AND T INFRA PRIVATE LIMITED [Active] CIN = U45200PN2012PTC144893

Company & Directors' Information:- S R C INFRA PRIVATE LIMITED [Active] CIN = U45200KA2014PTC073052

Company & Directors' Information:- S G F INFRA PRIVATE LIMITED [Active] CIN = U45400JK2013PTC003837

Company & Directors' Information:- R E INFRA PRIVATE LIMITED [Active] CIN = U74999MH2007PTC175255

Company & Directors' Information:- M Y C INFRA PRIVATE LIMITED [Active] CIN = U45400UP2013PTC055996

Company & Directors' Information:- A R INFRA PRIVATE LIMITED [Active] CIN = U45202AS2008PTC008561

Company & Directors' Information:- R K INFRA(INDIA) PRIVATE LIMITED [Active] CIN = U45201KA2010PTC054009

Company & Directors' Information:- I V INFRA PRIVATE LIMITED [Active] CIN = U45309PB2008PTC031932

Company & Directors' Information:- KONARK (INDIA) LTD [Active] CIN = L67120WB1982PLC035036

Company & Directors' Information:- M & B INFRA LIMITED [Active] CIN = U70109PB2012PLC036738

Company & Directors' Information:- A H INFRA LIMITED [Active] CIN = U31501WB2010PLC155151

Company & Directors' Information:- V & H INFRA PRIVATE LIMITED [Active] CIN = U45203MH2008PTC181787

Company & Directors' Information:- S S M E SOLUTION PRIVATE LIMITED [Active] CIN = U74120DL2008PTC174982

Company & Directors' Information:- S R U INFRA PRIVATE LIMITED [Active] CIN = U70102UP2014PTC065614

Company & Directors' Information:- S G U INFRA PRIVATE LIMITED [Active] CIN = U70102UP2015PTC071682

Company & Directors' Information:- N. S. INFRA PRIVATE LIMITED [Active] CIN = U45200UP2021PTC142424

Company & Directors' Information:- M G D INFRA PRIVATE LIMITED [Active] CIN = U45400UP2015PTC069886

Company & Directors' Information:- K R D INFRA PRIVATE LIMITED [Active] CIN = U45400TZ2020PTC034945

Company & Directors' Information:- Z INFRA LIMITED [Strike Off] CIN = U45201OR2009PLC010795

Company & Directors' Information:- S B M INFRA PRIVATE LIMITED [Strike Off] CIN = U45201TR2010PTC008299

Company & Directors' Information:- S INFRA PRIVATE LIMITED [Under Process of Striking Off] CIN = U45201OR2012PTC016064

Company & Directors' Information:- J D C INFRA PRIVATE LIMITED [Strike Off] CIN = U45209HR2012PTC045407

Company & Directors' Information:- S S P L INFRA PRIVATE LIMITED [Strike Off] CIN = U45201OR2011PTC013469

Company & Directors' Information:- Y. M. INFRA PRIVATE LIMITED [Active] CIN = U45400MH2010PTC211055

Company & Directors' Information:- V V INFRA PRIVATE LIMITED [Active] CIN = U45200TG2008PTC059111

Company & Directors' Information:- R V G INFRA PRIVATE LIMITED [Strike Off] CIN = U70200DL2011PTC219732

Company & Directors' Information:- S P G N INFRA PRIVATE LIMITED [Active] CIN = U45200AP2015PTC096326

Company & Directors' Information:- Y. C. INFRA PRIVATE LIMITED [Active] CIN = U45400WB2010PTC151352

Company & Directors' Information:- J K S INFRA (INDIA) LIMITED [Active] CIN = U45209PB2012PLC036363

Company & Directors' Information:- J S N INFRA (INDIA) LIMITED [Active] CIN = U45400UP2012PLC050189

Company & Directors' Information:- R V J INFRA PRIVATE LIMITED [Active] CIN = U45200DL2013PTC249181

Company & Directors' Information:- J J INFRA INDIA PRIVATE LIMITED [Active] CIN = U45209AP2011PTC078174

Company & Directors' Information:- A R INFRA (INDIA) PRIVATE LIMITED [Active] CIN = U70109MP2007PTC020049

Company & Directors' Information:- G K V INFRA PRIVATE LIMITED [Strike Off] CIN = U45200PN2011PTC141814

Company & Directors' Information:- A P SOLUTION PRIVATE LIMITED [Active] CIN = U72200DL2005PTC144131

Company & Directors' Information:- M R K INFRA PRIVATE LIMITED [Active] CIN = U45209TG2012PTC080558

Company & Directors' Information:- L G INFRA PRIVATE LIMITED [Strike Off] CIN = U45400TN2014PTC095310

Company & Directors' Information:- M SOLUTION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74120MH2013PTC247501

Company & Directors' Information:- S. D. SOLUTION PRIVATE LIMITED [Strike Off] CIN = U72200WB2011PTC170349

Company & Directors' Information:- J G INFRA PRIVATE LIMITED [Active] CIN = U45209CH2012PTC034095

Company & Directors' Information:- M R SOLUTION PRIVATE LIMITED [Active] CIN = U72900DL2016PTC306084

Company & Directors' Information:- E & P INFRA PRIVATE LIMITED [Strike Off] CIN = U74999DL2014PTC271401

Company & Directors' Information:- T & T INFRA INDIA PRIVATE LIMITED [Strike Off] CIN = U70109DL2015PTC276336

Company & Directors' Information:- K T INFRA PRIVATE LIMITED [Strike Off] CIN = U70200DL2010PTC199408

Company & Directors' Information:- R K T SOLUTION PRIVATE LIMITED [Active] CIN = U72200DL2012PTC229937

Company & Directors' Information:- A 4 INFRA PRIVATE LIMITED [Strike Off] CIN = U70100DL2012PTC233921

Company & Directors' Information:- K & H INFRA PRIVATE LIMITED [Active] CIN = U45209AP2013PTC090417

Company & Directors' Information:- C D E F INFRA PRIVATE LIMITED [Active] CIN = U45200KA2011PTC057888

Company & Directors' Information:- M M D INFRA PRIVATE LIMITED [Strike Off] CIN = U70101GJ2013PTC075444

Company & Directors' Information:- P M D INFRA PRIVATE LIMITED [Active] CIN = U45201GJ2007PTC050762

Company & Directors' Information:- V & T INFRA PRIVATE LIMITED [Strike Off] CIN = U70100TG2008PTC061671

    C.M.P. No. 88 of 2018

    Decided On, 21 February 2018

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE BISWANATH RATH

    For the Appellant: M/s. M.K. Pati, A.R. Dash, R. Mohapatra, Advocates. For the Opposite Parties: M/s. B.S. Panigrahi, D.K. Rout, Advocates.



Judgment Text

1. This civil miscellaneous petition involves a challenge to the order passed by the learned District Judge in I.A. No.1 of 2017 arising out of F.A.O. No.18 of 2017 involving allowing an application under Order 39 Rule(s) 1 & 2 read with Section 151 of C.P.C. arising out of the F.A.O. No.18 of 2017.

2. For the nature of the order involved herein, looking to the fact scenario involved herein and even though there is no stamp reporting but while hearing the matter on admission a doubt is raised on the maintainability of the Civil Miscellaneous Petition. For which, this Court first takes up the maintainability of the present proceeding hearing the counsels appearing for the respective sides. It be taken note here that there is already appearance of the opposite parties by way of caveat.

3. Admitted fact involved in the civil miscellaneous petition is that the opposite party no.1 herein as the plaintiff, instituted a suit in the court of the Civil Judge (Sr. Divn.), Bhubaneswar registered as C.S. No.2128 of 2016 impleading the present petitioner as defendant no.4 and the rest of the opposite parties as defendants. The suit was for declaration as well as permanent injunction along with other consequential reliefs.

Leaving apart the factual background, as the same is unnecessary for deciding the question of maintainability, this Court takes into consideration the relevant factual aspect, which is necessary for consideration of the issue that "for the order involving the application under Order 39 Rule(s) 1 & 2 of C.P.C. in the pending appeal before the learned District Judge, Khurda, is the Civil Miscellaneous Petition involving such order under Article 227 of the Constitution of India maintainable or not?"

4. For the above, this Court proceeds as hereunder: In the suit at the instance of the opposite party no.1-the plaintiff therein, an application under Order 39 Rule(s) 1 & 2 of the C.P.C. was filed seeking a direction for injunction against the opposite parties involved therein from changing the nature and character of the suit land and further, alienating the suit land till disposal of the suit. This application was registered as I.A. No.1/2016 and got disposed of with participation of all contesting parties. By order dated 23.11.2016 the trial court finally directed the defendant no.1 i.e. the present petitioner, for claiming any equity over the suit land in the event, the plaintiff succeeds in the suit. Being aggrieved by the order involving I.A. No.1/2016, the plaintiff i.e. the opposite party no.1 filed the F.A.O. No.18 of 2017 before the learned District Judge, Khurda. In addition to the appeal, the plaintiff opposite party no.1 also filed an application under Order 39 Rule(s) 1 & 2 of the C.P.C. seeking interim injunction till disposal of the appeal, being registered as I.A. No.1/2017. Learned District Judge hearing the application under Order 39 Rule (s) 1 & 2 involving both the contestants disposed of the I.A. No.1/2017 directing both the parties to maintain status quo till disposal of the appeal, thereby also fixing the date of hearing of the appeal to 20.11.2017.

This Civil Miscellaneous Petition is directed against the order passed by the learned District Judge in I.A. No.1/2017 involving an application under Order 39 Rule(s) 1 & 2 of the C.P.C. arising out of the F.A.O. No.18 of 2017.

5. Answering to the doubt raised by this Court on the maintainability of the Civil Miscellaneous Petition under the peculiar circumstance, Shri A.R. Dash, learned counsel for the petitioner taking this Court to the provisions contained in Order 43 Rule1-R as well as Section 104 of the C.P.C. and further, taking the plea that the impugned order arises out of an appeal proceeding pending before the learned District Judge and following the restrictions in the Section 104 read with Order 43 Rule 1 (r), submitted that no further appeal is permissible in the eye of law, therefore, the civil miscellaneous petition under Article 227 of the Constitution of India is maintainable. Shri A.R. Das, learned counsel for the petitioner to justify his claim that the civil miscellaneous petition is maintainable, referring to the citations in the case of C. Kalahasti, Appellant v. P.C. Munuswami Chetti, Respondent as reported in AIR 1975 Madras 3, in the case of Ramaswamy Reddiar and others, Appellants v. Chinna Sithammal and others, Respondents as reported in AIR 1976 Madras 63, in the case of Domlu Guno Gaudo and others, Appellants v. Smt. Yeshadabai Ganesh Naik and another, Respondents as reported in AIR 1978 GOA, Daman & Diu 31, in the case of K. Gangulappa Naidu and others, Petitioners v. K. Gangi Naidu, Respondent as reported in AIR 1982 Andhra Pradesh 284, in the case of Madhusudan Hota v. Ratnakar Hota as reported in 2014 (I) OLR 921 and taking this Court to the ratio decided in the above cases contended that his contentions regarding maintainability of the civil miscellaneous petition get support from all the above decisions.

6. In his opposition, learned counsel for the opposite party while objecting the submission made by Shri A.R. Dash, taking this Court to the factual aspect involving the matter and the detail development taken place in the meantime, contended that for the interim application U/o 39 Rules 1 & 2 of C.P.C. taken up in the appeal, requiring an independent consideration in the original side of the Appellate authority, the order passed therein is appealable and this Civil Miscellaneous Petition is maintainable.

7. Considering the submission of the learned counsel for the petitioner and on assessment of the provisions contained in the Code of Civil Procedure particularly at Section 104 as well as Order 43 of the Code of Civil Procedure, this Court finds, Section 104 provides the provision for appeals from the order.

Section 104 of the C.P.C. reads as follows:

"Orders from which appeal lies-(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force from no other orders:

[Clause (a) to (f) omitted]

[(ff) an order under section 35-A;]

[(ff-a) an order under section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;]

(g) an order under Section 95;]

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules: [Provided that no appeal shall lie against any order specified in Clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]

(2) No appeal shall lie from any order passed in appeal under this section."

8. Reading of the provision at Sub-section 2 of Section 104, this Court finds, there is a clear restriction that no appeal shall lie from any order passed in appeal under this section, which leaves no doubt that the proceeding disposed of or involved in the subsequent proceeding must be appealed under Section 104 and the order involved in the subsequent proceeding must be arising out of an appeal. Taking into consideration the factual background involving the case at hand that the appeal before the District Judge is an appeal under Section 104 of the C.P.C. read with Order 43 of the C.P.C. but the proceeding disposed of involves disposal of an application under Order 39 Rule (s) 1 & 2 of C.P.C., this Court here observes, the District Judge has exercised his appellate jurisdiction so far as the pending appeal is concerned i.e. the F.A.O. No.18 of 2017, whereas the order impugned herein is disposal of an application under Order 39 Rule(s) 1 & 2 of the C.P.C. involving I.A. No.1 of 2017 also comes under the Appellate Jurisdiction of the District Judge, pending disposal of the appeal in exercise of the appellate power of the same court. It is at this stage taking into consideration the citations cited by the learned counsel for the petitioner vide AIR 1975 Madras 3 in the case of C. kalahasti, Appellant v. P.C. Munuswami Chetti, Respondent this Court finds, the fact involved therein was that the plaintiff therein filed a suit against the defendant for relief of injunction, simultaneously also filed a petition under Order 39 Rule 1& 2 of C.P.C. to restrain the defendant with specific relief claimed therein. The City Civil Court dismissed the I.A. Against dismissal of the I.A. under Order 39 Rules 1 & 2, the plaintiff preferred C.M.A. No.36/73 where the petitioner again filed an application for interim order of temporary injunction till disposal of the appeal. The Sessions Additional City Civil Judge allowed the C.M.P. No.49 of 1973. Aggrieved by the order passed in C.M.P. defendants preferred C.M.A. before the Madras High Court. Taking into consideration the provisions contained in Section 104 read with Section 107 of the C.P.C., the Madras High Court in paragraph nos.8 to 12 of the said judgment observed as follows:

"8. I am however unable to agree with the contention of Mr. V. Shanmugham. Section 107(2), Civil Procedure Code certainly does lend support to the interpretation given to it by the learned counsel. All that Section 107(2), Civil Procedure Code provides for is that subject to the several modes of disposal of an appeal, enumerated in sub-section (1), the appellate court shall have the same powers and shall perform, as nearly as may be, the same duties as are conferred and imposed by the Code on courts of original jurisdiction in respect of suits instituted therein. This provision will alter the nature and character of an order passed by an appellate court under Order XXXIX, Rule 1, Civil Procedure Code or any other order of a like nature, into an order passed by a court of original jurisdiction from an order passed by a court of appellate jurisdiction. As a matter of fact, Section 107(2) does have the effect of rendering an appellate court a court of original jurisdiction when exercising its powers to pass incidental orders. All that sub-section (2) of Section 107 states is that subject to the limitations contained in the Code, the powers of the appellate court shall be co-extensive with the powers and obligations conferred and imposed upon the courts of original jurisdiction in respect of suits filed before them. Apart from Section 107(2) lending support to the interpretation given by Mr. V. Shanmugham, the other provisions in the Code, viz., Sections 104 and 105 and Order XLIII, Rule 1 also go to show that an interim order passed by an appellate court cannot be deemed to be an order passed by the said court in exercise of its original jurisdiction.

9. Before proceeding to consider the provisions of Section 104 and Order XLIII, Rule 1, Civil P.C., it is apposite to remember that, while under Section 96 of the Code, every decree is appealable save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, every order is necessarily appealable and, as a matter of fact, no other order except those specified in Section 104(1) or exempted thereunder is appealable. Section 104, which is the relevant provision in the Code which makes provision for appeals from orders, provides inter alia that any order made under rules, from which an appeal is expressly allowed by rules, is appealable. Order XLIII, Rule 1, Civil Procedure Code which enumerates the orders from which an appeal can be preferred is referable to this provision in Section 104 and consequently, Order XLIII, Rule 1, Civil Procedure Code cannot confer greater rights than what is conferred by Section 104. As a matter of fact, Order XLIII, Rule 1, Civil Procedure Code itself reads as follows-"An appeal shall lie from the following orders under the provisions of Section 104."(underlining mine). Inasmuch as reference is made to Section 104in Order XLIII, Rule 1, Civil Procedure Code it necessarily follows that Section 104 has to be considered in its entire conspectus to decide the question whether an order referred to in Order XLIII, Rule 1 is an appealable order when it has been passed by an appellate court. As Section 104(2) clearly lays down that no appeal would lie from any order passed in appeal, it necessarily follows that the right of appeal given against the orders enumerated in Order XLIIII, Rule 1 will be subject to the stipulation contained in Section 104(2), Civil Procedure Code Moreover, Section 105 also makes it clear that unless otherwise expressly provided, no appeal shall lie from an order made by a Court in the exercise of its original or appellate jurisdiction. The use of the words 'original or appellate jurisdiction' in Section 105 makes it abundantly clear that the court can only exercise either original or appellate jurisdiction, but cannot exercise both at one and the same time. Therefore, the contention of Mr. Shanmugham that even though the order in C.M.P. 49 of 1973 was passed by an appellate court, the order must nevertheless be construed to be one passed by the said court in the exercise of its original jurisdiction, cannot be countenanced, and it is clearly an untenable contention. It is only by virtue of the powers vested in it as an appellate court that the Additional City Civil Court passed the order in C.M.P. 49 of 1973 and consequently, the order will squarely fall within that class of orders which are contemplated in Section 104(2), Civil Procedure Code and which are expressly prohibited from being canvassed in further appeal. The fact that the order was passed in an interlocutory application will make the order any the less an order passed in appeal. (Underlining is of this Court)

10. Mr. O. Radhakrishnan, learned counsel for the respondent, brought to my notice a decision of the Kerala High Court in Chellappan v. Varughese, ILR (1963) Ker 432 = (AIR 1964 Ker 23), where an indentical question as the one raised in this appeal had arisen for consideration. The learned Judge of the Kerala High Court, who decided the case, has come to the same conclusion as the one reached by me and has held that the power given to an appellate court under Section 107 is only part of its appellate jurisdiction, that it cannot be characterized as an original jurisdiction in an appellate court, that incidental orders passed by an appellate court in interlocutory applications moved in an appeal before it are 'orders passed in an appeal' within the scope of Section 104(2), Civil Procedure Code and cannot, therefore, be appealed against. I am in respectful agreement with the view expressed therein.

11. From another angle also, the argument advanced by Mr. Shanmugham is worthy of acceptance. Section 100, Civil Procedure Code sets out the grounds on which, a second appeal can be filed and Section 101, Civil Procedure Code lays down in unambiguous terms that no second appeal shall lie except on the grounds mentioned in Section 100 of the Code. It is thus seen that a litigant is entitled to file a second appeal as of right or as a matter of course and he is granted the right of a second appeal only if he satisfies the conditions adumbrated in Section 100, Civil Procedure Code If Mr. Shanmugham's contention is to be accepted, it would then mean that orders passed by an appellate court in interlocutory applications are to be placed on a better footing than appellate decrees themselves, because an order passed by an appellate court will automatically attract a second appeal solely on the ground that the order appealed against was passed by the appellate court in exercise of its original jurisdiction. Surely, the Legislature would have intended to confer the advantage of a second appeal in respect of orders passed under the Code when even appeals from appellate decrees are required to satisfy the conditions laid down in Section 100, Civil Procedure Code The anomalous consequences that would ensue by the acceptance of the argument of the learned counsel for the appellant is yet another factor to be taken note of in deciding the question whether an order passed under Order XXXIX, Rule 1, Civil Procedure Code by an appellate court is entitled to be appealed against.

12. In view of the reasons given above, I am clearly of the opinion that the appeal is maintainable and is clearly barred by Section 104(2), Civil Procedure Code The appeal should therefore fail on this technical ground as well.

9. Similarly in deciding a similar nature of issue in the case of Ramaswamy Reddiar and others, Appellants v. Chinna Sithammal and others as reported in AIR 1976 Madras 63, the Hon'ble Madras High Court in paragraph nos.3 & 4 observed as follows:

"3. Section 104(2) says that no appeal shall lie from any order passed in appeal under the said section. In order to attract sub-section (2), The appeal should be one falling under Section 104. If the appeal is one under Section 96, and under Section 104, subsection (2) of the latter section is applicable. If Section 104(2) is construed otherwise, that is as applying to appeals coming under Section 96, also the position would be anomalous. Sub-clauses (t) and (u) of Rule 1 of Order XLIII provide for appeals against orders passed under one provision or other of Order XLI, which governs appeals coming under Section 96. The said two sub-clauses cannot possibly refer to any order by a trial court. While clause (t) relates to an order refusing to re-admit (or to re-hear) an appeal (as in the present case), Clause (u) relates to an order of remand made by an appellate court under Rule 23 of Order XLI. These two provisions would become meaningless if subsection (2) of Section 104 is made to apply to appeals under Section 96. No one can suggest that no appeal lies against an order of remand made under Order XLI, Rule 23.

4. In the present case, the order of the court below is one under Order XLI, Rule 19 of the Code, made in appeals under Section 96. That order is certainly an appealable one, as per Order XLIII, Rule 1(t) of the Code, I am quite clear that sub-section (2) of Section 104 has no application to an order made in an appeal coming under Section 96."

10. In this case, the Madras High Court considering a challenge to the appeal involving an order under Order 41 Rule 19 of the Code of Civil Procedure made in an appeal under Section 96 observed that the restriction under sub-section 2 of Section 104 has no application to an order made involving an application in an appeal under Section 96 of the Act. This decision has however, no application to the case at hand.

11. Coming to have a look to the citation vide AIR 1978 GOA, Daman & Diu 31 in the case of Domlu Guno Gaudo and others, Appellants v. Smt. Yeshadabai Ganesh Naik and another, Respondents this Court finds, the fact involved herein is in the suit for permanent injunction, an application for temporary injunction was filed. The interim application being rejected by the trial court the plaintiff went up in appeal to the District Court. In the pending appeal the plaintiff filed an application for temporary injunction. Temporary injunction being granted by the lower appellate court, a miscellaneous appeal was moved to the High Court. The High Court of Goa in deciding the question of maintainability of the appeal observed that order passed by an appellate court in interlocutory applications moved in pending appeal, are the orders passed in appeal within the scope of Section 104(2) of C.P.C.

12. Now coming to scan the judgment vide AIR 1982 Andhra Pradesh 284 in the case of K. Gangulappa Naidu and others, Petitioners v. K. Gangi Naidu, Respondent this Court finds, the factual background involved therein was that in a suit for permanent injunction a petition for temporary injunction under Order 39 Rule(s) 1 & 2 of C.P.C. was filed. Interim injunction was granted after hearing both the parties. Appeal preferred by the defendants to the District Court was dismissed. Subsequently, the suit came up for trial was ultimately dismissed. The plaintiff carried a regular appeal to the District Court and in the regular appeal an application under Order 39 Rule (s) 1 & 2 of the C.P.C. for grant of injunction was again moved. The First appellate court granted the injunction. In deciding the question involved therein that whether an appeal lies against such order a revision is maintainable or not? the Andhra Pradesh High Court in paragraph nos.11 to 14 held as follows:

"11. In the instant case pending the appeal preferred against the disposal of the suit, an application under O.39, Rr.1 and 2 is filed and that application is disposed of for the first time by the appellate Court. This is a case where against the orders under O. 39, Rr. 1 and 2 made by the trial Court an appeal is preferred to the District Court and as against the orders of the District Court the matter is carried to this Court. So this does come under the mischief of Section 104(2), C.P.C., but squarely falls under Order 43, Rule 1(r). Accordingly, an appeal shall lie under Order 43, Rule 1(r) r/w Section 104(1), C.P.C. The authorities cited, as already noted, are distinguishable since the interlocutory proceedings there started from trial Court, then to the appellate Court and thereafter to the High Court attracting Section 104(2), C.P.C. Those High Courts are right in holding that no such appeal in those circumstances could be maintained. The case on hand is altogether different in nature and does attract Section 104(2). Therefore, an appeal does lie and is maintainable in the instant case.

12. In a subsequent case in Ramaswamy v. Chinna Sithammal (AIR 1976 Mad 63) Ramaswamy, J., had to consider a similar point. The facts of the case were :Two appeals were filed in the High Court against orders in two applications, which were filed to restore two appeals, which were dismissed for default. A preliminary objection was raised by the respondents that the appeals were maintainable and in support of their case they relief upon the decision of their case they relied upon the decision of Natarajan, J., in C. Kalahasti v. P.C.M. Chetti (AIR 1975 Mad 3). The learned Judge, Ramaswamy, J., dealing with that point held the view that (at p. 64):-

"Section 104(2) says that no appeal shall lie from any order passed in appeal under the said section. In order to attract sub-section (2) the appeal should be one falling under section 104. If the appeal is one under section 96, and no under section 104, sub-section (2) of the latter section is applicable. If Section 104(2) is construed otherwise, that is, as applying to appeals coming under section 96, also the position would be anomalous. He further observed that sub-cls. (t) and (u) of R. 1 of O. XLIII provide for appeals against orders passed under one provision or other of O. XLI, which governs appeals coming under section 96. The said two sub-clauses cannot possibly refer to any order by a trial court. While clause (t) relates to an order refusing to re-admit (or to rehear) an appeal (as in the present case) clause (u) relates to an order of remand made by an appellate court under Rule 23 of O. XLI. These two provisions would become meaningless if sub-section (2) of Section 104 is made to apply to appeals under section 96. No one can suggest that no appeal lies against an order of remand made under O.XLI, R.23.

In the present case, the order of the court below is one under O. XLI, R. 19 of the Code, made in appeals under section 96. That order is certainly an appealable one as per O. XLIII, R. 1(t) of the Code. I am quite clear that sub-section (2) of Section 104 has no application to an order made in an appeal coming under Section 96."

13. The learned Judge distinguished the decision in C. Kalahasti v. P.C. M. Chetti (AIR 1975 Mad 3.), on the facts of the case, byobserving:

"If I may say so with respect, the decision of Nagarajan, J., is unexceptionable. As seen above the order which was appealed against, though made under O. XXXIX, R. 1, had been passed in an appeal which itself was one against an appealable order. The appeal before the Court which passed the order questioned before Nagarajan, J. was really one coming under section 104 that is, an appeal against an appealable order. But, the observations of the learned Judge are sought to be construed as laying down the law that no appeal lies against an order passed in any appeal even though the order is an appealable one, under one or other of the clauses of O. XLIII, R. 1, C.P.C. The learned Judge could have possibly meant it so. If the learned Judge has really stated that an order passed even in a regular appeal coming under section 96 of the Code is appealable, it would be purely obiter, for, in the matter before the learned Judge, the order had been passed in an appeal coming under section 96, but in appeal coming under section 104."

For the difference in the fact situation involved therein, this Court finds, this decision has no application to the case at hand.

13. Coming to scan the decision vide 2014 (I) OLR 921 in the case of Madhusudan Hota v. Ratnakar Hota this Court finds, the fact involved in the above case is that the respondent in the appeal decided therein as plaintiff filed T.S. No.452 of 2000 on the file of learned Civil Judge (Jr. Divn.), Balasore. Plaintiff accompanied therein an application under Order 39 Rule 1 & 2 of C.P.C. appearing as Misc. Case No.287 of 2000. Prayer for interim injunction being rejected, the plaintiff preferred Miscellaneous Appeal No.123 of 2001 wherein a direction was given to the parties to maintain status quo in respect of the plots involved therein. After disposal of the miscellaneous appeal an application under Order 39 Rule 2(A) of C.P.C. was filed alleging that the appellant and his sons disturb the status quo order. Order 39 Rule 2(a) application ended with an observation that the appellant involved therein violated the status quo order with an order of attachment of a property for a period of one year and appeal was preferred to the High Court under Order 43 Rule 1 of C.P.C. read with Section 104 of C.P.C. which was registered as F.A.O. No.151 of 2009. In disposal of the F.A.O No.151 of 2009 this High Court in paragraph no.6 of the said judgment held as follows:

'6. The appeal in hand is one against an order passed by the learned District Judge on application filed before him for the first time under Order 39, Rule 2-A C.P.C. alleging violation of order of status quo which was passed by the learned District Judge in the Misc. Appeal. It is argued by the learned counsel for the appellant that sine the learned District Judge had passed the order of status quo, any application alleging violation of that order was required to be filed before the same Court and, accordingly, R-1 filed the petition under Order 31, Rule 2-A C.P.C. Therefore, it is submitted that the petition under Order 39, Rule 2-A C.P.C. is an independent proceeding initiated for the first time before the learned District Judge and the impugned order passed on that petition cannot be said to be an order passed in an appeal under Section 104 C.P.C.

In the present case the impugned order has been passed on an application under Order 39, Rule 2A C.P.C. which is appealable under Order 43 Rule 1(r) C.P.C. In Choorakadum v. Antony, AIR 1991 Kerala 44 it is held that the proceeding under Order 43, Rule 2-A for breach of injunction is separate and independent. In Ratnakar Swain v. Orissa Forest Corporation Ltd., 75(1993) CLT 476 it is observed by this Court that an order passed by a Single Judge under Order 39, Rule 2-A for violating order of injunction passed by him partakes the nature of an original order even though passed in a proceeding arising out of an appeal."

From reading of the ratio decided therein, this High Court in the aforesaid citation, taking into account another decision of this Court observed that disposal of the miscellaneous application since involve an application U/o-39 Rule 2(A) of C.P.C., is in the nature of an original order, even though passed in a proceeding arising out of an appeal and thus, held that the appeal involved is maintainable.

14. Looking to the decision vide 75(1993) CLT 476 rendered by a Division Bench of this Court, this Court finds, the factual aspect involved therein was that the plaintiff brought a suit for title and injunction in the suit. The Subordinate Judge granted ex parte order of injunction, which got finally vacated on 17.3.1989 on disposal of the Miscellaneous application, resulting the plaintiff carried the matter in appeal in Misc. Appeal. Learned Single Judge in disposal of the Miscellaneous Appeal prohibited the defendant - respondents from interfering in the suit land. Miscellaneous appeal was allowed. It is at a subsequen

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t stage, the plaintiff-respondent filed Misc. Case No.730 of 1990 in Order 39 Rule 2(A) of the Code of Civil Procedure alleging violation of the injunction order of this Court. By order dated 26.4.1994 a direction was given for conducting an enquiry in the matter of violation. Subsequently, the application under Order 39 Rule 2(A) was allowed with imposition of punishment. Party aggrieved filed letters patent appeal involving the order of conviction. The question of maintainability of the appeal involving an order under Order 39 Rule 2(A) was disposed of in an appeal by a Single Judge. This Court in paragraph no.14 observes, an order passed by the Single Judge under Order 39 Rule 2(A) for violation of Order of injunction passed by him partakes the nature of an original order, even though passed in a proceeding arising out of an appeal, falls in the trapping of its finality. 15. Reading of both the decisions vide 2014(I) OLR 921 as well as in 75(1993) CLT 476 both rendered by this High Court, this Court finds, both the decisions involved disposal of petition U/o-39 Rule 2(A) of the C.P.C. and it is under the circumstance, this Court is of the view that for the nature of petition involved particularly U/o-39 Rule2(A) of the C.P.C., the disposal of the application even though involves an appeal pending with the appellate authority cannot fall in the trap of an independent proceeding so as to invite the appeal remedy. Decisions vide AIR 1975 Madras 3 as well as in AIR 1982 Andhra Pradesh 284 and AIR 1978 GOA, Daman & Diu 31 supports the stand taken by Shri Dash, learned counsel for the petitioner. Decision vide 2014(I) OLR 921 as well as in 75(1993) CLT 476 rendered by this Court since stand on different footing has no application to the case at hand. This Court answering on the question of maintainability holds, the present Civil Miscellaneous Petition is maintainable. 16. Now coming to decide on merit involving the impugned order, this Court finds, in considering the application under Order 39 Rules 1 & 2, the appellate Court as an interim measure considering the allegation by the appellant that she being a coparcener and protection of property was paramount consideration till the appeal against the refusal of injunction by the trial court is disposed, the lower appellate court is justified in passing the impugned order. As a result, this Court finds no scope to interfere in the same but however, taking into consideration the direction of the appellate court for early disposal of the appeal pending with him, this Court while disposing the Civil Miscellaneous Application directs the lower Appellate Court to dispose the appeal vide F.A.O. No.1/2017 within one month from the next date of posting. Parties are directed to appear in the lower court on the next date fixed with copy of the order of this Court. 17. This Court appreciates the effort of Shri Amiya Kumar Mishra, learned Additional Government Advocate and Miss. Samapika Mishra, learned Additional Standing Counsel in rendering their assistance during hearing of this case. 18. The civil miscellaneous petition stands disposed of with above direction. However, in the circumstance, there is no order as to cost.
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