Whether an order passed by the trial court to issue notice to the defendants and thereby declining to grant ex parte ad interim injunction is appealable?

Reference must also be made to the recent decision of the Apex Court in A. Venkatasubiah Naidu v. S. Chellappan . In paragraph 19 of the judgment, the Apex Court observed:

“It cannot be contended that the power to pass interim ex parte orders of injunction does not emanates from the said Rule. In fact, the said rule is the repository of the power to grant temporary injunction with or without notice interim or temporary, or till further orders or till disposal of the suit. Hence, any order passed in exercise of the aforesaid powers under 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 the same court which passed the ex parte order for any relief.

(Underlining supplied) These observations show that Rules 1 and 2 and not the Rule 3 of Order 39 are the repository of the power to grant injunction. The words “any order” used by the Apex Court are significant and thus an appeal would lie even against an order refusing to grant ad interim injunction. It is no doubt true that some observations in paragraph No. 19 of the very judgment do suggest that an appeal against an ex parte ad interim order of injunction would be maintainable if the court does not decide the application finally within 30 days and breaches the mandate of Rule 3A of Order 39. However, those observations must be read in the context and in any event do not limit the earlier observations contained in paragraph No. 11 extracted above.{Para 10}

Bombay High Court

Rajendraprasad R. Singh vs The Municipal Corpn. Of Gr. Bombay … on 24 January, 2003
Citations: AIR 2003 Bom 392, 2004 (1) BomCR 300, 2003 (3) MhLj 757
Author: D Karnik
Bench: D Karnik

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