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Sandesh Limited v/s Transmedia Software Limited, Through Jasmin B Shah

    Appeal From Order No. 149 of 2013 With Civil Application No. 4069 of 2013

    Decided On, 07 October 2015

    At, High Court of Gujarat At Ahmedabad


    For the Appearing Parties: S.N. Soparkar, Sr. Advocate assisted by Tirthraj Pandya, Aditya B. Mehta Advocates.

Judgment Text

AkilKureshi, J.

Oral Judgment:

1. This Appeal from Order is placed before the Division Bench for consideration of following question of law referred by the Single Judge:-

"Whether an order passed by the Trial Court issuing notice in an interim injunction application filed by the plaintiff without granting ex parte injunction with or without recording reasons, is appealable under Order 43 Rule 1 of CPC?

2. In the Appeal from Order, the plaintiffs have challenged the order dated 03.04.2013 passed by the learned Additional District Judge, Ahmedabad (Rural) below application Exh. 5 in Trademark Suit No. 4 of 2013. In the suit, the plaintiffs sought relief against infringement of trademark. Pending the suit, prayer for interim injunction was made against the defendant using its trademark - "Sandesh Samachar". By order dated 03.04.2013, trial Court while issuing notice to the defendant on application for temporary injunction, recorded brief reasons for not granting ex parte ad interim injunction. The trial Court was of the opinion that not granting ex parte injunction would not cause irreparable damage to the plaintiffs which cannot be compensated in terms of money. This order of the trial Court has been challenged by the plaintiffs in the Appeal from Order.

3. When the Appeal from Order was taken up for hearing, learned Counsel for the defendant contended that the appeal was not maintainable. He placed reliance on the decision of the learned single Judge in case of Gujarat Small Industries Corporation v/s. Rajkot Engineering Association, reported in, 1991 (2) GLH page No. 399. On behalf of the appellants, it was contended that view of the learned single Judge in case of Gujarat Small Industries Corporation (supra) requires reconsideration. Single Judge (Akil Kureshi, J.) noticed that different High Courts had taken divergent views. Many of these decisions, though available, were not brought to the notice of the learned single Judge in case of Gujarat Small Industries Corporation (supra). Finding that the issue is one of considerable importance and would require an authoritative pronouncement by the Division Bench, the single Judge referred the above noted question for consideration by the Division Bench.

4. Since one of us (Akil Kureshi, J.) was the author of the reference order dated 11.08.2015, we had raised a preliminary issue with the learned Advocates for the parties whether the reference should be heard by a Bench of which Akil Kureshi, J. is a member. Question of permissibility and proprietary of the Bench to hear this issue, were discussed. Learned Advocates made considerable research and presented for our consideration certain decisions, to which we would make a reference. In case of R. Vishwanathan & Ors. v/s. Gajambal Ammal & Ors., reported in, AIR 1963 SC page No. 1, the Supreme Court considered the issue where one of the members to the Full Bench was one Mr. Justice Balakrishanaiya. Challenge of the appellants was that the learned Judge had earlier delivered judgment on the merits of the dispute and he had thereafter referred the case to the Full Bench. He, therefore, could not have set as a member of the Full Bench after making up his mind on the merits of the appeals, since this would be opposed to the principles of natural justice. In this context, the Supreme Court observed as under:

"52......It may appear, that in the absence of a statutory provision the fact that a Judge sits in appeal or in an application against a judgment after he has decided the case would not by itself render the judgment of the court invalid. In a strictly technical sense therefore it is true to say that a Judge is not incompetent to sit in an appeal or application against his own judgment. But the Courts are not merely concerned to deal with cases in a rigid spirit of legalism. It is of the essence of a judicial trial that the atmosphere in which it is held must be of calm detachment and dispassionate and unbiassed application of the mind. It may be pertinent to observe that since the Federal Court was constituted and after this Court was invested with jurisdiction to try appeals there has occurred no case - - our attention has not been incited to any - in which a Judge who had tried a case in the High Court or elsewhere sat in appeal against his own judgment sitting in the Federal Court or in this Court. The practice prevailing in the High Courts of including a Judge against whose judgment an appeal or proceedings in the nature of an appeal is filed, appears to have also fallen into desuetude and it is proper that it should whatever may have been the historical reasons in England and whatever may be the technical view as to the constitution of a Bench in which one or more Judges sit after they have expressed their opinion - not tentative but final. - the practice which permits a Judge to sit in appeal against his own judgment or in cases in which he had an opportunity of making up his mind and to express his conclusion on the merits of the dispute has little to commend itself for acceptance. We are therefore unable to agree that the circumstance that Mr. Balakrishanaiya delivered a final opinion in the appeals filed by the plaintiffs and thereafter sat in the Full Bench even after objection was raised by the plaintiffs to his participation may be discarded altogether from consideration in deciding whether in the light of other circumstances the plaintiffs had a fair trial and they were afforded an adequate opportunity of presenting their case before an unbiassed Court. If the circumstances established by the other evidence disclose a prima facie case of bias, the fact that Mr. Balakrishanaiya notwithstanding the objection raised by the plaintiffs sat in the Full Bench after expressing his final opinion may have to be taken into account."

5. In a separate concurring judgment, Hidayatullah, J. expanded this view and opined as under:

'118. The next contention is that Balakrishniah, J., sat on the Full Bench after expressing his views on the merits of the appeals in a long and considered judgment. It was contended that this deprived the sons of Ramalingam of a proper hearing before a Judge who had not made up his mind already. There is considerable room for doubt on this point. There have been several cases before, in which Judges who have made a reference to a larger Bench have sat on the Bench, even though they had earlier expressed an opinion. Some of them have also changed their views later. Here again, the practice of the Court must receive some attention. The learned Attorney-General drew our attention to three cases of the Mysore High Court in which precedents are to be found. He also drew our attention to cases from the other High Courts in India and of some Courts abroad. In some of the foreign cases, judges have sat in a Bench hearing the case, after decision by them, in appeal or re-hearing. Of course, one need not go so far as that in our country, though in cases under Cl. 26 of the Letters Patent of the Chartered High Courts. Judges who have presided over Sessions Trials have sat at the re-hearing after the certificate of the Advocate-General. Examples of both kinds of cases are to be found in the Law Reports: See ILR 44 Cal 477: (AIR 1917 Cal 123) (FB). AIR 1924 Cal 257. The learned Attorney General drew our attention to the Encyclopaedia of Laws and Precedents(1906), Vol. 23, p. 588 and American Jurisprudence (1958), Vol. 30A. p. 76. para. 187 and William Cramp and, Sons v. International Curtis Marine Turbine Co., (1912) 57 Law Ed 1003 and 1951 – l All ER 804. In some of the earlier cases, the practice was quite common due to the smallness of the number of Judges: See, for example. ILR 6 All 468, Queen Empress v. Saminatha Chetti, ILR 7 Mad 274 (FB), Seshadri Ayyangar v. Nataraja Ayyar, ILR 21, Mad 179. There is no law to prohibit this, and in a small Court with limited number of Judges, this may be unavoidable. It is not to be expected that ad hoc Judges would be appointed every time such a situation arises. But what we have to guide ourselves by is the practice obtaining in the Court, with which we are dealing. If the practice there was common and inveterate no litigant can be said to apprehend reasonably that he would not get justice. There are no less than four cases of the Mysore High Court in which a similar procedure was followed, in addition to those already cited. In my opinion, in view of the strength of the Court and the practice in vogue, the Judgment of the Full Bench cannot, on this circumstance, be described as against the principles of natural justice.

6. It can thus be seen that in absence of any statutory provisions, the question of participation of a referring Judge in Larger Bench would depend upon practice followed in the Court as also the facts and circumstances primarily concerning the question whether fair trial was possible. As noted, in the said decision of the Supreme Court in case of R.Vishwanathan (supra), in our Courts, the permissibility of a Judge sitting in appeal over his own judgment, unlike in English Courts, is not accepted. Nevertheless, when a question of reference comes, it often arises out of a prima facie or tentative opinion expressed by the learned Judge, who finds himself unable to accept the view already propounded by a Bench of coordinate strength. If the opinion expressed is a tentative one, because the learned Judge is unable to agree with the view previously expressed or is faced with divergent opinions of the two different Judges one without the benefit of the other or for any such similar reason thinks that an authoritative pronouncement by a Larger Bench is needed, in our legal system, neither by statute nor by convention, any limitation has been recognized by which the referring Judge cannot be a member of the Larger Bench hearing such a reference. Undoubtedly, however, if the view expressed by the learned Judge is final, either in the referring order itself or outside of it, this question may assume a different parameter.

7. Our attention was also drawn to a decision of the Supreme Court in case of State of W.B. & Ors. v/s. Shivananda Pathak & Ors., reported in : (1998) 5 SCC, page No. 513 : (AIR 1998 SC 2050). It was a case where a Judge of the Calcutta High Court had, in a service matter, allowed the writ petition directing the Government to issue promotion orders to the petitioners. This judgment was challenged by the affected respondents before the Division Bench. The Division Bench allowed the appeal, modified the order of the learned single Judge and directed the State authorities to consider the cases of the promotion of the appellants as well as the writ petitioners in accordance with law. In compliance of such directions, the State of West Bengal granted promotion to 40 employees drawn from various categories of the feeder posts. Sometime later, the original petitioners approached the Calcutta High Court and prayed that they be paid arrears of salary and allowances from an earlier date in terms of the original judgment of the learned Single Judge. The petition was disallowed by the learned single Judge, which judgment was challenged before the Division Bench of the High Court, in which one of the Judges was the one who had rendered the earlier decision in writ petition. In this background, it was argued before the Supreme Court that the learned Judge having expressed his view when he had decided the first writ petition as single Judge could not have sat in the Division Bench in a collateral proceedings between the same parties initiated by subsequent writ petitioners. The Supreme Court accepted such contention in following terms:

"36. In view of these facts, we are constrained to observe that it was not competent for Mr. Justice Ajit Kumar Sengupta to have presided over the Bench in which the impugned judgment was passed as he had already expressed his opinion in the earlier writ petition which was overruled. He should have disassociated himself from that Bench in keeping with the high traditions of the institution so as to give effect to the rule that "justice should not only be done, it should manifestly be seen to have been done" apart from sitting in appeal, though collaterally, over his own judgment."

8. It was thus a case where the learned Judge being part of a Division Bench had already expressed a final opinion with respect to an important issue which was the subject matter of appeal before the Division Bench. In fact, said proceedings were as a sequel to the decision of the single Judge which was already overruled by the Division Bench.

9. The decision of Calcutta High Court in case of Pallab Phouzder & Ors. v/s. Union Bank of India & Ors., reported in, 2013 SCC Online Cal, page No. 5503 was cited before us in which Division Bench of administrative tribunal had referred a question for consideration of the Full Bench. The Chairman of the Administrative Tribunal constituted a Bench of three Judges to hear such an issue, in which both the referring Judges were included. This decision of the Chairman was challenged before the Calcutta High Court. Learned single Judge opined that constitution of the Bench was defective. It was observed as under:

"16. Justice must not only be done but must manifestly be seen to have been done, is the well accepted principle of law. Suffice it to say that since impartiality is regarded as a supreme judicial virtue, it follows as a logical corollary that a Judge acting in whatever capacity, either judicial or administrative, must not only be impartial, he must also appear to be impartial."

10. We would not adopt this line in the present appeal. Firstly, it is a decision by learned single Judge of Calcutta High Court. Secondly, it is rendered in the background of constitution of a Bench of an administrative tribunal. This is not to suggest that the maxim that justice must not only be done but must also appear to have been done would not apply to the constitutional Courts or that the need for transparency would in any manner be lesser. This is only to suggest that the requirement of recusal for the constitutional Courts cannot be equated with that of the administrative tribunals. As long as therefore no final opinion is expressed nor there is any other ground of a possible howsoever remote likelihood of bias, we see no impediment in a referring Judge being part of a Bench hearing such a reference.

11. The question can be looked from slightly different angle. Once the reference is made by a Judge or a Bench of Judges, the constitution of the Bench to hear such a reference would be the sole and exclusive prerogative of the Chief Justice. Once, therefore, the Chief Justice constitutes a Bench, mindful of the nature of reference, there must be limited grounds on which the Bench can refuse to hear such a reference. In this context, had the learned Acting Chief Justice not been apprised of the author of the referring order, perhaps there could have been some lurking doubt whether formation of the Bench was a conscious decision or a routine exercise. In this context, we have perused the submission made by the Registry dated 22.08.2015 to the Hon'ble Acting Chief Justice pointing out the need for constitution of a Division Bench for hearing the reference. In this submission, it was pointed out that the order dated 11.08.2015 was passed by Akil Kureshi, J. On this submission, on the same page, the Hon'ble Acting Chief Justice directed constitution of a Bench to be presided over by Akil Kureshi, J. The constitution of the Bench therefore was a conscious decision mindful of the fact that the order of reference was passed by one of us. We had therefore heard the reference on merits.

12. Both sides had made detailed submissions and brought several judgments to our notice taking one view of the other. As a culmination of such hearing, in our opinion, following situation arises.

13. Section 104 of the Code of Civil Procedure pertains to orders from which appeal lies. Besides others, in terms of clause -(i) of sub -section (1) of Sec. 104, an appeal would lie from any order made under rules from which an appeal is expressly allowed by rules. In this context, we may refer to O. XLHJ of CPC, which pertains to appeals from orders. R -1 of O. XLUI provides for different orders from which an appeal under Sec. 104 of CPC would lie. Clause -(r) thereof reads as under:

"(r) an order under Rule 1, Rule 2 Rule 2A, rule 4 or rule 10 of Order XXXIX;"

14. As is well known, O. XXXIX of CPC pertains to temporary injunctions. R. 1 of O. XXXIX pertains to cases in which temporary injunction may be granted and reads as under:

"1 CASES IN WHICH TEMPORARY INJUNCTION MAY BE GRANTED - - Where in any suit it is proved by affidavit or otherwise -

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,

the Court may by order grant a temporary injunction to restrain such act, or to make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff, in relation to any property in dispute in the suit as the Court minks fit, until the disposal of the suit or until further orders."

15. R -2 of O -XXXIX pertains to injunction to restrain repetition or continuance of breach. R -2A pertains to consequence of disobedience or breach of injunction. R-3 of O -XXXIX requires issuance of notice by the Court before granting injunction except in certain circumstances and reads as under:

"3 BEFORE GRANTING INJUNCTION, COURT TO DIRECT NOTICE TO OPPOSITE PARTY. -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.

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant -

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with -

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent."

16. R. 4 of O. XXXIX pertains to order for injunction when can be discharged, varied or set aside and reads 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:

Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the court is satisfied that the order has caused undue hardship to that party."

17. R -10 of O -XXXDC pertains to deposit of money in the Court and enables the Court to pass an order directing party to deposit in the Court money or other thing under certain circumstances.

18. It is by now well settled that when the trial Court passes an order granting injunction, even ex parte, it is an order which is appealable. This view was expressed by the Division Bench of this Court in case of Patel Jasmat Sanghaji v/s. Gujarat Electricity Board, reported in : 1982 (2) GLR, page No. 104 : (AIR 1982 Guj 264) as under:

"8. We are in full agreement with the reasoning adopted by the Judges of the Full Bench of the Allahabad High Court in the case of Zila Parishad Budaun & Ors. (supra). Once the Court after perusing the application and affidavit comes to the conclusion that the case is a fit one in which temporary injunction should be issued ex parte, the court does take a tentative decision in the matter and the expression of this decision is a final order for the duration it is passed and such an order is the one contemplated by Rules 1 and 2 of Order 39 of the Civil Procedure Code read with Rule 3 of that very order."

19. Likewise in case of A. Venkatasubbiah Naidu v/s. S. Chellappan & Ors., reported in : (2000) 7 SCC, page No. 695 : (AIR 2000 SC 3032), the Supreme Court observed as under: -

"13. It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43, Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate Court or to approach the same Court which passed the ex parte order for any relief."

20. We are however, concerned with a situation where trial Court has merely issued notice and refused to grant ex parte injunction. We have noticed that R -1 of O. XXXTX lists situations where the Court may grant temporary injunction in the nature of a restraint order or in the nature of stay as the Court thinks fit. Any order or injunction passed under R -1, even if ex parte, is clearly and undisputably appealable. If, therefore, the trial Court passed an order issuing notice, refusing to grant injunction, could it also not be seen as an order under R. 1 of O. XXXTX of CPC? In this context, the Counsel for the defendant would contend that such an order would be one passed under R -3 of O. XXXIX of CPC. Since R -1(r) of Order XLIII does not refer to R. 3 of O. XXXEX, according to the Counsel, such an order would not be appealable. We are, however, unable to accept such a contention. R. 3 of O. XXXIX lays down condition for the trial Court to grant ex parte injunction and requires that in all cases, except where it appears that the object of granting injunction would be defeated by delay, before granting injunction, the Court would issue notice to the opposite party. Proviso to R. 3 requires the Court to record reasons for its opinion that the object of granting injunction would be defeated by delay before issuing such ex parte injunction. The Court would also require the applicant to deliver to the opposite party a copy of the application for injunction together with listed documents and to file an affidavit stating that the required copies have been so delivered or sent. In essence, therefore, R. 3 of O. XXXIX lays down a procedure to regulate the question of granting or not granting ex parte injunction. In ordinary cases, the Court would issue notice to the opposite party before considering question of granting injunction. Exception to this normal rule would be where the Court is of the opinion that the object of granting injunction would be defeated by delay. Even while doing so, the Court is obliged to record reasons for its opinion that the object of granting injunction would be defeated by delay. The Court would also require the applicant to take certain follow-up actions.

21. The question of granting or not granting injunction is essentially governed by R -1 of O. XXXTX of C.P.C. R. 3 only governs the procedure for granting such an injunction and particularly ex parte injunction. In essence, therefore, when though pressed, the Court merely issues notice, but refuses to grant ex parte injunction, it is an order passed under R. 1 of O. XXXIX. In other words, even an order not granting ex parte injunction is one passed under R. 1 of O. XXXTX. The decision of the trial Court not to grant ex parte injunction can be manifested either through an order to this effect or even by mere notice unaccompanied by injunction. Nevertheless, in either case, it is an order of the trial Court and the effect of such an order on the plaintiff would be, that an ex parte injunction he has prayed for is not granted. It cannot be disputed that often times refusal to grant injunction, though temporary, may result into serious and irreparable damage to the plaintiff. The same way, as the exercise of discretion in granting injunction is an order under R. 1 of O. XXXTX, equally the decision of the Court not to grant injunction at an ex parte stage is an order under R. 1 of O. XXXTX. When seen from this angle, it immediately becomes clear that against any such order passed by the trial Court, an appeal would be available in terms of Sec. 104 of CPC read with R. 1 of O. XLIII.

22. The issue can be looked from slightly different angle. It is indisputably true that Clause -(r) of R. 1 of O. XLTTI does not include an order passed under R. 3 of OXXXIX. It is, however, doubtful whether R -3 of O -XXXIX refers to any order that the Court would pass. It only requires the Court in all cases to issue notice before granting injunction, except where it appears to the Court that object of granting injunction would be defeated by delay. At best, R. 3 of O. XXXIX refers to a notice to be issued. We are doubtful whether when the Court is issuing notice without accompanying injunction, it is an order under R. 3. If we believe that an order of issuing notice is one passed under R. 3, anomalous situation will arise when the plaintiffs have filed an application for injunction, but not prayed for ex parte injunction. Would then the order of the Court issuing notice under could be considered as the one passed under R. 3 of O. XXXIX? It was perhaps therefore that the legislature did not include R. 3 in appealable orders' clause (r) of R. 1 of O. XLII. Rest of the Rules 1, 2, 2A, 4 and 10 mentioned therein as can be easily seen, in juxta position refer to some or the other order that the Court would pass. Even if the order to issue notice is treated to be one under R. 3 of O. XXXIX, the appeal that the plaintiff files is not against this order of the trial Court issuing notice, but against the decision of the trial Court not to grant injunction in addition to such notice. This order certainly flows from R. 1 of O -XXXIX and not R. 3 of O. XXXIX.

23. The view that we have taken is supported by following decisions:

I. In case of Akmal Ali & Ors. v/s. State of Assam & Ors., reported in : AIR 1984 Gauhati, page No. 86. The Full Bench of the High Court held and observed as under:

"10. As alluded, even an ex parte ad interim order rendered under Rule 1 or 2 of Order 39 is an order falling within the purview of Order 43, Rule 1(r). Orders rendered under Rules 1 and 2 of Order 39 have been designated as orders appealable under Order 43, Rule 1(r) and, as such we are not to look at Sec. 2(9) of Sec. 2(14) of the Code. Sec. 2 of 'the Code' clearly states that the definition should be understood in the manner stated in Sec. 2 "unless there is anything repugnant in the subject or context". If there is any repugnancy in Order-43, Rule 1(r) read with Order 39, Rules 1 and 2, the meaning of the term 'order' should be understood as set out in those provisions and definition need not be restored to. That apart any order rendered under Order 39, Rule 1 or 2 is a formal expression of the decision arrived at by the Civil Court relating to granting of an interim injunction. How could a court injunct a party without deciding whether to grant it or not. Form No. 8 of Appendix F to the Civil P.C., 1980, clearly shows the manner in which the formal expression of the decision is required to be made. Further, to say that reasons must find place in an order to be regarded as a decision would land the litigants in great difficulty, as, one word 'Dismissed' would then not be 'Orders'. Such a proposition cannot be accepted. It is a different matter that all orders, interim or final, should contain reasons. But to regard all not speaking disposals as net even 'orders of the appropriate authorities would create statemate, as such disposals might then become non -appealable or non -revisable, even under me relevant statutory provisions."

II. In case of Airport Authority of India v/s. M/s. Paradise Hotel and Restaurant, reported in AIR 2002 Gauhati, page No. 146(1). Learned single Judge observed as under:

"14. It is also important to note that under O. 39 R. 3, a Court merely decides whether to grant injunction ex parte or after giving notice. If it decides to give notice and passes injunction order after giving notice, the power is really exercised under O. 39, R. 1 and or 2. If the Court, however, decides to pass injunction order without giving notice, men, too, the power of granting injunction really flows from O. 39, Rr. 1 and/or 2. Thus, O. 39, R. 3 merely given option to the Court whether to issue injunction after giving notice or without giving notice and prescribes me procedure for granting injunction ex parte, the procedure being that the Court, if it decides to issue injunction without serving notice, has to assign reasons for its decision of not giving notice before issuing injunction.

15. In effect, thus, R. 3 merely lays down procedure for granting injunction whereas Rr. 1 and 2 combined together is repository of Court's power of granting injunction. I am guided to adopt this view from law laid down in Akmal Ali's case (AIR 1984 Gau 86) (FB) (supra)"

III. Yet again, in case of Sajjan Kumar Tharad v/s. Smit Deoris Marbaniang, reported in AIR 2011 Gauhati, page No. 47. Learned single Judge of the High Court reiterated this proposition and observed as under:

"18. In my considered opinion, Rule 3 of Order 39, CPC cannot be read in isolation. I am also of the view that Rules 1 to 5 of Order 39 are intrinsically related to each other and have to be read harmoniously. I reiterate the view taken by the Hon'ble Bombay High Court that the provisions of Rule 3 are only procedural in nature. The words "before granting injunction" in the marginal heading of Rule 3 clearly indicates that this Rule is a continuance of Rules 1 and 2 and unless implied existence of Rules 1 and 2 in the entire chapter is not inferred, it would make the provisions of Rules 3, 3A, 4 and 5 otiose and redundant. I am also of the view that if the orders passed in Rule 3, i.e. issuing pre–injunction notice to the opposite party, is taken out of rigour of Order 43, Rule 1(r) CPC, the trial Court may adopt a practice of refusal ad interim ex parte injunction by way of issuing notices, without assigning reasons so that such orders cannot be challenged by way of appeal. On these premises, I hold that orders of issuance of notice simpliciter, purportedly passed under Order 39, Rule 3 are essential element of Rules 1 and 2, meaning refusal to grant ex parte injunction, and as such, orders are appealable under Order 43, Rule 1(r) read with Sec. 104(1)(i) of the CPC."

IV. In case of Rajendra prasad R. Singh v/s. Municipal Corpn. of Gr. Bombay, reported in : AIR 2003 Bombay, page No. 392. Learned single Judge of the Bombay High Court held and observed as under:

"9. It cannot be doubted that the power to grant injunction under Rules 1 and 2 of Order 39 includes a power not to grant an injunction. Issuance of a notice under Rule 3 of Order 39, amounts to an order not to grant injunction till notice is served on the opposite party. Therefore, when the Court passes an order of issuance of a notice, it amounts exercise of discretion by the Court not to grant injunction till notice is issued. As the order granting an ex parte injunction is appealable, so would be the order of declining to grant ex parte injunction.

Relying upon the judgment in M/s. Parijatha v/s. Kamalaksha Nayak, reported in : AIR 1982 Karnataka 105 and Abdul Shukoor Sahib v/s. Umachander, reported in, AIR 1976 Madras 205, it was contended that the appeal does not lie even against an ex parte order of injunction and the remedy of the aggrieved defendant lies in making an application under Rule 4 of Order 39 of the Code of Civil Procedure.

However, preponderance of judicial view is that an appeal lies against an ex parte order granting ad interim injunction. In Zilla Parishad Buduan v/s. Barhma Rashi Sharma, reported in : AIR 1970 Allahabad 376 the Full Bench of the Allahabad High Court, in M/s. Alstral Traders v/s. Haji Mohammed Shaban Dar, reported in, AIR 1982 Jammu and Kashmir High Court, in Akmal Ali v/s. State of Assam, reported in : AIR 1984 Gauhati 86 the Full Bench of the Gauhati High Court, in Patel Jasmat Sangaji v/s. Gujarat Electricity Board, reported in : 1982 Guj (23) Gujarat Law Reporter 104 : (AIR 1982 Guj 264) the Division Bench of Gujarat High Court, in United Commercial Bank v/s. Hanuman Synthetics Ltd., reported in : AIR 1985 Calcutta 96 the Division Bench of the Calcutta High Court, and in Airport Authority of India v/s. Paradise Hotel and Restaurant (sic) the single Judge of the Gauhati High Court have all held that an appeal lies against ex parte order of injunction passed under Rule 1 or Rule 2 of Order 39 of the Code of Civil Procedure. So far as this Court is concerned, the matter is concluded by the decision of this Court in S.K. Jusa v/s. Ganpat Dagdu Gire, reported in : AIR 1976 Bombay 222 wherein a learned single Judge of this Court has held that an appeal lies against an order of Court granting ex parte temporary injunction against defendants with a notice to show -cause to the defendants. In my opinion, the order granting ex parte ad interim injunction as well as order declining to grant ex parte temporary injunction and issuance of a notice, are both orders passed under Rule

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1 or 2 of Order 39 of the Code of Civil Procedure. If the first is appealable, so must be the second." V. In Case of Ashok Tshering Lama v/s. Tshering Wangdi, reported in: AIR 1982 Sikkim, page No. 20, the learned Single Judge expressed similar opinion as under: "3. If it were necessary for me to decide the question, as to whether the appeal filed before the District Court was maintainable, I might have, with respect, greed with the view of the Patna and the Calcutta High Courts holding such appeal to be maintainable and dissented, with equal respect, from the Punjab decision and the decision of the Allahabad High Court which was followed in that Punjab case, holding against the maintainability of such an appeal. For I would have thought that all orders granting or refusing injunction, whether ex parte or after notice, are orders under either R. 1 or R. 2 of O. 39, except when injunctions are granted under inherent powers, and R. 3 only seeks to regulate the mode in which the jurisdiction under Rr. 1 and 2 is to be exercised. I would have thought that when a party makes an application for an immediate and ex parte order of injunction and the Court refuses to grant such an injunction and instead issues notice to the application to the opposite party, the order of refusal would be an order under R. 1 or R. 2, as the case may be and not under R. 3 and hence appealable under O. 43 R. 1(r). But since the order of the District Judge dismissing the appeal has not been challenged before me in any way and Mr. Sharma, far from assailing that order, is very much relying thereon to justify exclusion of the period spent in that appeal, I need not go into that question in this revisional proceeding which is directed solely against the order of the Civil Judge refusing ad interim injunction ex parte and issuing notice to the respondent-defendant." 24. We are not unmindful of the following decisions of other High Courts taking contrary view. 25. IN case of Amrik Singh v/s. M/s. Bala Ji Rice Mills, reported in : 2013 (5) ALJ, page No. 458. The Division Bench of Allahabad High Court held that a mere order issuing notice on an application for grant of interim injunction comes under R - 3 of O -39 and is therefore not appealable in view of R -1(r) of O -43. Likewise in case of Rajneesh Singh Bahrtari v/s. Surya Pal Bhandari & Ors., reported in : AIR 2011 Uttarakhand, page No. 1, also expressed similar view. Learned single Judge of Madhya Pradesh High Court in case of Khusilal & Ors. v/s. Gorelal & Ors., reported in : AIR 1986 Madhya Pradesh, page No. 47, also held that such an order is one passed under R -3 of O -XXXIX and therefore not appealable. Similar view of Delhi High Court in case of Nisha Raj v/s. Pratap Kaula, reported in : ELR (1995) II Delhi, page No. 281 and of Punjab High Court in case of Iqbal Singh & Ors. v/s. Chanan Singh & Ors., reported in : AIR 1966 Punjab, page No. 165. 26. All these judgments essentially proceed on the footing that order issuing notice by the trial Court without granting injunction is one passed under R -3 of OXXXDC With this premise, we have fundamental disagreement. In our opinion, any order passed by the trial Court, either granting ex parte injunction or refusing to grant such ex parte injunction is an order under R -1 or O -XXXDC of CPC and hence appealable. We are therefore unable to accept this line of reasoning of the High Courts in the above noted decisions. 27. In the result, reference is answered in affirmative, i.e. an order passed by the trial Court issuing notice in an injunction application without granting ex parte injunction, with or without recording reasons, is appealable under O -43, R -3 of CPC. 28. Reference is disposed of accordingly. 29. For further consideration of Appeal from Order, the matter be placed before the concerned learned single Judge.