Anil Agrawal son of late Dharm Prakash Agrawal has rushed to this court questioning the validity of the order dated 14.11.2011 passed by District Judge, Budaun in Misc. Case No. 98 of 2011, condoning the delay in preferring the appeal and fixing 21.11.2011 as the date for admission under Order 41 Rule 1 of the Code of Civil Procedure.
Brief background of the case, as it emerges from the record, is that the plaintiff-petitioner instituted original suit No.170 of 2011 in the Court of civil Judge (Junior Division), Gunnaur, district Budaun seeking a decree of permanent prohibitory injunction restraining the defendant-respondents from establishing any retail outlet of its company within 300 meters from the retail outlet of the petitioner. The trial court vide its order dated 07.07.2011 passed an order of injunction restraining the defendants concerned from establishing any retail outlet of its company within 300 meters from the retail outlet of the petitioner. Subsequently, on 09.08.2011, respondent Nos. 4 and 5 preferred an application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure (herein after referred to as "the Code"). Not only this, they preferred yet another application on the same day for rejection of application for temporary injunction. These applications were supported by affidavits. These respondents appeared before trial court and participated in arguments for disposal of application for temporary injunction. Apart from it, respondent Nos. 4 and 5 also preferred Misc. Appeal under Order 43 Rule 1 (r) of the Code in the Court of District Judge, Budaun. On objection being raised that the appeal was time barred, the appellants were granted time to file application for condoning the delay. Thereafter, application was filed seeking condonation of delay in preferring the appeal. Vide order dated 11.08.2011 notices were issued to the plaintiff petitioner. The plaintiff-petitioner filed objection in the said misc. appeal taking plea that the appeal was not maintainable, as the appellants had also availed the remedy under Order 39 Rule 4 of the Code by way of filing objection to the temporary injunction application. The petitioner submits that the District Judge without considering the objections raised by the plaintiff-petitioner passed the impugned order. At this juncture, petitioner has approached this Court, contending that the appeal has been illegally entertained, as once application under Order 39 Rule 4 of the Code had been moved, then pending its adjudication, appeal ought not to have been entertained, as such writ petition deserves to be allowed.
As the issues sought to be raised are purely legal, writ petition has been taken up for final hearing and disposal, without inviting any counter affidavit, with the consent of the parties.
Sri Anoop Trivedi, learned counsel for the petitioner assisted by Sri Nitin Gupta, Advocate, contended with vehemence that on exparte injunction order having been passed, an application had already been moved under Order 39 rule 4 of the Code for its vacation, then preference of appeal against the same very order was not at all justifiable, person dissatisfied with the grant of injunction could not have resorted to two simultaneous proceedings; one by filing application under order 39 Rule 4 of the Code and the other by preferring appeal under Order 43 Rule 1(r) against the same very order, and the doctrine of election demands that the aggrieved party should elect one either of the two remedies, as such writ petition deserves to be allowed.
Countering the said submissions, Sri Rahul Sahai, Advocate, representing respondent No. 4, has contended that two recourses are open to a party against whom order has been passed and under the statutory provisions contained under the Code simultaneous filing of application under Order 39 Rule 4 seeking vacation of the injunction order as well as misc. appeal against the same very order under Order 43 Rule 1 (r) of the Code is not at all barred, and the incumbent can take recourse to both the proceedings simultaneously, thus, the objection so raised at the behest of the petitioner is not legally sustainable, and the writ petition, as it has been framed and drawn, deserves to be dismissed.
Sri Prakash Padia, Advocate, appearing for the Indian Oil Corporation toed the same line of argument, and in addition to the same contended that once application moved under Order 39 rule 4 C.P.C. had not been decided, then appellate forum has got every right to do away with the injustice done on account of passing of ex parte interim order in appeal preferred under Order 43 Rule 1 (r) of the Code, as such writ petition deserves to be dismissed.
After respective arguments have been advanced, factual situation, which has so emerged in the present case is that the petitioner had instituted original suit No.170 of 2011 in the Court of Civil Judge (Junior Division), Gunnaur, District Budaun, restraining the defendant-respondents from establishing any retail outlet of its company within 300 meters from the retail outlet of the petitioner. In the said suit the trial court proceeded to pass order to the effect that from the outlet of the petitioner at the distance of 300 meters no retail outlet shall be established. Deepak Agrawal, who was one amongst the candidates, who had applied pursuant to advertisement published in Dainik Jagaran dated 20.12.2010, submitted application on 04.02.2011 and deposited a sum of Rs.7,00,000/-. Deepak Agrawal was called for interview for being appointed as dealer under the scheme of ''Kisan Sewa Kendra', and ultimately, he had been selected by issuance of letter of appointment of dealership. As the interim injunction granted by the trial court was coming in his way to operate the dealership, he moved an application under Order 1 Rule 10 C.P.C for being impleaded and arrayed as respondent in the aforesaid suit and also requested to reject the application for temporary injunction. Said application remained pending before the trial Court, who had proceeded to pass injunction order. Deepak Agrawal in the meantime preferred Misc. Appeal under Order 43 Rule 1 (r) of the Code in the Court of District Judge, Budaun. On objection being raised that the appeal was time barred, the appellants were granted time to file application for condoning the delay. Thereafter, application was filed seeking condonation of delay in preferring the appeal. Vide order dated 11.08.2011 notices were issued to the plaintiff petitioner. The plaintiff-petitioner filed objection in the said misc. appeal taking plea that the appeal was not maintainable, as the appellants had also availed the remedy under Order 39 Rule 4 of the Code by way of filing objection to the temporary injunction application. The appellate court has proceeded to condone the delay in filing appeal and also fixed the date for admission of the appeal.
The issue to be answered in the present case is as to whether once when application under Order 39 Rule 4 of the Code has been moved for vacating the exparte injunction order, simultaneously, side by side, is appeal maintainable under Order 43 Rule 1 (r) of the Code?
In order to consider the respective arguments, relevant provisions of the Code of Civil Procedure are being looked into. For ready reference the provisions of Order 39 Rules, 1, 2, 3 and 4, Section 104 and Order 43 Rule 1 (r) of the Code of Civil Procedure are being quoted below:
"16. The language and the object of Rule 1 (r) of Order 39 and the scheme of rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte order of injunction. As soon as an interim injunction is issued and the party affected thereby is apprised of it, he has two remedies; (1) he can either get the ex parte injunction order discharged or varied or set aside under rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided for under Order 43 rule 1 (r ) or (2) straightaway file an appeal under Order 43 Rule 1 (r ) against the injunction order passed under Rules 1 and 2 of Order 39 C.P.C. It is not unusual to provide for alternative remedies. For instance, when an ex parte decree is passed against a person, he has two remedies; either he may go up in appeal against the ex parte decree or he may seek to the ex parte decree set aside by the same court."
Aforesaid judgment in question has been subject matter of consideration in the case of Indradeo Singh vs. District Jduge, Gorakhpur and others, ARC 1993 (2) page 357, and therein this Court keeping in view the legislative mandate as provided for that there is no such condition under Order 43 rule 1 (r ) C.P.C. that after application has been moved under Rule 4 of Order 39 for vacating the ex parte injunction order and the said injunction application has not been disposed of, appeal would not be maintainable. This Court has taken the view that in the absence of any such specific provision under the rule it will not be proper to restrict the right of appeal conferred by the Statute by holding that the appeal would not be maintainable after the application for vacation of temporary injunction order is still pending. Relevant paragraphs 3, 4 and 5 of the judgment are being extracted below:
"3. Sri P.K. Mishra, Learned Counsel for the petitioner has submitted that as the defendant Zila Parishad has already filed an application under Order XXXIX, Rule 4 CPC for vacating the injunction order, the appeal preferred by it against the said order was not maintainable and the impugned order of the learned District Judge admitting the appeal and staying operation of the injunction order is illegal and without jurisdiction. According to the learned Counsel, a litigant can avail of only one remedy as provided by the Cod of Civil Procedure namely ; either he can file an application under Order XXXIX, Rule 4 CPC or he can prefer an appeal, the contention raised by learned Counsel has no substance. Order XXXIV of the Code deals with temporary injunction and Rules 1 and 2 give power to the Court to grant a temporary injunction in order to prevent waste or damage or alienation of the property or to prevent the defendant from dispossessing the plaintiff for to restrain the defendant from committing breach of contract other injury of any kind. Rule 3 provides that the Court shall in all cases, except where it appears that the object of granting 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. Rule 4 provides that an order for injunction may be discharged or varied or set aside by the Court on an application made by any party dissatisfied with such order. Order XLIII, Rule 1 (r) provides that an appeal shall lie from an order under Rule 1, Rule 2 and Rule 4 of Order XXXIX, CPC. It is, therefore, clear that an appeal is maintainable both against the ex parte injunction order as well as against an order passed by the Court after hearing the opposite party. The Code has not made any such provision that if a party has moved an application for vacating an ex parte order, the appeal against the said order would not be maintainable till the decision of the application or till a final is passed under Rule 4 of Order XXXIX, CPC. It is well settled that the appeal is a creation of statute and the right of appeal can be exercised subject to the conditions and is accordance with the procedure provided by the relevant provision which enable the aggrieved party to prefer an appeal. Order XLI CPC gives details procedure for filing appeals against original decrees and it also provides the procedure and conditions under which interim order can be passed. In some of taxing statutes it is provided that the appeal will not be entertained unless certain amount of tax is deposited. Section 9 (1-B) of U.P. Sales Tax Act provides that no appeal against the assessment order shall be entertained unless the appellant has deposited the amount of tax admitted by him. There is no such condition under Order XLIII, Rule 1 (r) CPC that if an application has been moved under Rule 4 of Order XXXIX, CPC for vacating an ex parte injunction order and the said application has not been disposed of the appeal would not be maintainable. In absence of any such specific provision in the rules, it will not be proper to restrict the right of appeal conferred by the statute by holding that the appeal would not be maintainable if the application to vacate the ex parte order is still pending.
4.In Zila Parishad, Badaun V. Brahma Rishi Sharma, AIR 1970 Alld. 376, a Full Bench of this Court has held that an ex parte order issuing temporary injunction under Order XXXIX, Rule 1 and 2 against the defendants is appealable under order XLIII, Rule (r) CPC. It has been held that the language of Rule 1Nayak,Rule 1 (r) is unhedged and broad and the Courts should lean in favour of an interpretation which expands rather then shrinks a remedial right. It has been further held that remedial provision is generally construed liberally and Rule 1 (r) creates a remedial right of appeal for protection of substantial and substantive rights. In case the contention raised by learned Counsel for the appellant is accepted it will have the effect of restricting the right conferred by the rule rather than expanding it. I am, therefore, clearly of the opinion that the fact that an application to vacate the ex parte order of injunction is still pending can have no bearing on the right of the aggrieved party to file an appeal and the right of party to approach the hiher Court cannot be curtailed in any manner.
5.Shri Misra placed reliance upon certain observations made in para 16 of the judgement in the case of Zila parishad (supra), in support of his contention that a party aggrieved by the ex parte order of interim injunction can eithter get the same discharged under Rule 4 or file an appleal under Rule 1 (r) of Order XLIII CPC. It is well settled that the language used in a judgement is not to be interpreted in the same manner as a provision of statute and every word used in the judgement is not to be given a literal meaning. Two questions were referred to the Full Bench namely ; whether an ex parte injunction order is appeelable and whether in any such appeal, the appellant can rely on fresh evidence. The Question urged in the present appeal was neithter involved in the case nor was considered by the Full Bench. It has not been held in the said decision that if an application for vacating ex parte injunction order is till pending, the appeal preferred by the aggrieved party against the said order is not maintainable. Therefore, this authority does not support the contention raised by learned Counsel for the appellant and on the contrary it lays down in unequivocal terms that the ex parete order is appealable. Learned Counsel has also referred to three other decisions in support of his submission namely ; M/s. Astral Traders V. M/s. H.M.S. Dar, AIR 1982 JK 124 (FB) ; Patel JasmatSanjuji v. G.E.B. Board, AIR 1982 Gij 264 and M/s. Parijatha V. Kanalksha Nayak, AIR 1982 Kar 105. In the first case it has been held that an appeal is maintainable against an ex parte order of injunction but it will be more appropriate if the aggrieved party first approaches the trial Court for vacating the order. In the second case also, it has been held that the appeal is maintainable but the Appellate Court will exercise the power cautiously. Therefore, these two cases also lay down that the appeal is maintainable and do not support the petitioner. In the third case, Karnataka High Court has expressly dissented from Full Bench of our court in the case of Zila Parishad (supra) and has held that no appeal is maintainable against an ex parte order. Since this decision is directly contrary to the view expressed by Full Bench of our Court, the same cannot be followed by me."
Said judgment in question has again been subject matter of consideration before this Court in the case of Roomi Prasad vs. IIIrd Additional District Judge, Etah and others, 1998 (34) ALR 366, wherein this Court has taken the view that existence of Rule 4 does not mutually exclude operation of Order XLIII under which appeal is permitted against the order passed under Order XXXIX, Rules 1 and 2 of the Code. Neither in Order XLIII nor under Rule 4 there is any provision which mutually exclude operation of each other when one is resorted to. It has also been mentioned therein that it is also not provided in the said provision that once one of the provision is opted, the other is excluded or that both options cannot be opted together. Categorical mention has been made that it is always open to such persons to proceed simultaneously when one or the other opts for the both and success and defeat in one or the other may have the impact on the result of other, which is decided later. Such a matter is to be taken into account by the Court dealing with such cases and weigh the impact of the situation in a given case depending on the facts and circumstances of the case and the question raised therein. Paragraphs 13 and 14 of the aforesaid judgment being relevant are extracted below:
"13. It is also open to such defendant to prefer an appeal against such an interim order where Rule 3 has been infracted and in such appeal infraction of Rule 3 will remain open to be contended. The existence of Rule 4 does not mutually exclude operation of Order XLIII under which appeal is permitted against the order passed under Order XXXIX, Rules 1 and 2 of the Code. Neither in Order XLIII nor under Rule 4 there is any provision which mutually exclude operation of each other when one is resorted to. Against the order of injunction when procedure provides two remedies, one under Rule 4. Order XXXIX and the other under Order XLIII and in that event, it is the discretion of the person against whom injunction is granted to opt for the either. It is also not provided in the provision that once one of the provision is opted, the other is excluded or that both options cannot be opted together. It is always open to such persons to proceed simultaneously when one or the other opts for the both and success and defeat in one or the other may have the impact on the result of other, which is decided later. Such a matter is to be taken into account by the Court dealing with such cases and weigh the impact of the situation in a given case depending on the facts and circumstances of the case and the question raised therein.
In the present case, admittedly the defendant did not resort to Rule 4 though it appeared in the suit. As observed earlier, it appears that the appeal was preferred even before the order dated 23.5.1990. Therefore, it is not necessary to go into the question of impact of order dated 23.5.1990. But then the extension of the interim order on the other hand supports the utility of continuation of appeal since the interim order had not come to an end, as originally granted on the date fixed.
14. When the ex parte order of injunction is granted without notice both the remedies under Rule 4 and Order XLI1I are open to such aggrieved party, who may even concurrently proceeded with both the remedies. Such a view was taken by Calcutta High Court in Re Santosh Kumar Ghosh v. State. AIR 1983 Col 250, and ad interim injunction passed prior to issue of notice to the defendant is appealable is a view taken in the case of Sarju Prasad v. Ganga Prasad, AIR 1951 Cal 446, as well as in the case of Bebts and Company v. Ram Pyari, AIR 1951 All 8 and L. D. Meston School Society v. Kashi Nath Mitra. AIR 1951 All 558. In the case of Zila Parishad v. B. R. Sharma. AIR 1970 All 376, this Court had held that a party aggrieved by the order of ex parte interim injunction, has two remedies. He may seek vacation or variation of the order under Rule 4 or he may file appeal under Order XLIII.
Therefore, I am unable to agree with the contention of Sri Sharma that appeal in the present case was not maintainable and the remedy of the defendant lay under Rule 4 alone. In the present case the defendant did not resort to both the remedies but adopted one namely the appeal, as observed earlier. Therefore, Sri Sharma cannot espouse the said point." A Division Bench of this Court in the case of Punjab National Bank vs. Salim Mian, 2007 ADJ (5) 261 after taking into consideration the Full Bench judgment of this Court in the case of Zila Parishad, Budaun (supra) has held as follows: "5. From perusal of the aforesaid decision it is crystal clear that the bank can avail opportunity of appeal either being unsuccessful to get the ex parte injunction order, discharged, varied or set aside in terms of Order XXXIX, Rule 4, C.P.C. or straightway. 6. In the instant case when the appellant Bank's application is pending, the appeal has been filed. Learned Counsel for the appellant contended that since several adjournments are granted by the court below, the application would not be heard at the earliest. We are afraid that such submission cannot be a ground of appeal. We can only express our desire that the application which is pending before the court below will be heard as expeditiously as possible. 7. Therefore, taking into totality of the matter we are of the view that the appeal cannot be sustained at this stage when the application is already pending. It may lie only when it is decided and the appellant remains unsuccessful. Therefore, the appeal stands dismissed. Interim order if any stands vacated. No order is passed as to costs." This Court in the case of Gail Limited vs. Advance Lamps Component and Tablewares Pvt. Ltd. Firozabad, 2007 (4) ALJ (NOC) 688 (All) (DB) has observed as under: "This appeal has been preferred by the appellant being aggrieved by the order dated 28th March, 2007 under which an ex parte interim order of injunction has been granted by the learned District Judge, Firozabad in favour of the respondents herein. Learned counsel appearing for the appellant further contended that interim order was subsequently directed to be continued. It has further informed that on 18th April, 2007 when the appellant came to know about existence of the order, obtained a certified copy of the same to proceed with the matter. It appears that application for vacating the interim order was also filed in the Court below on 3rd May, 2007. However, this appeal has been preferred on the anxiety of the appellant that if the injunction order continues it will be compelled to continue with the supply of the gas irrespective of the expiry of the period. The application made in the Court below under Section 9 of the Arbitration and Conciliation Act, 1996 at a pre-reference stage. According to us, the Code of Civil Procedure (hereinafter called as C.P.C.) principally applies in case of hearing the matter by the Court particularly at the time of grant or refuse to grant any order of injunction. Under Order XXXIX Rule 3-A C.P.C. in case any exparte order of injunction, expeditious hearing is to be made preferable within a period of 30 days from passing of such order. Similarly under Order XXXIX Rule 4 C.P.C. aggrieved party is entitled to make application to get discharge/set aside/ variation of the order. Therefore, when the application has already been made by the appellant in the Court below, two simultaneously proceedings i.e. (i) application and (ii) appeal cannot be allowed to go on. Application for discharge/set aside/variation will be heard at first. Therefore, taking into the totality of the matter, in our view we cannot grant any relief to the appellant at this stage of the proceedings. Accordingly the appeal is dismissed. No order is passed as to costs. However, our order of dismissal will not cause any prejudice to the appellant in proceeding with the application and the Court below shall proceed to decide the matter in accordance with law expeditiously preferably within a period of one month, if necessary by preponing the date fixed." Apex Court in the case of Bhanu Kumar Jain vs. Archana Kumar and another, 2005 (1) SCC 787 has taken the view that after taking into account this facet of the matter that no one should be made to face the same action of litigation twice over because such process would be contrary to consideration of fair play and justice in context of the provisions of Order 9 rule 13 C.P.C., viz. Filing of appeal in terms of Section 96 of the Code. Apex Court has mentioned that once exparte decree is passed the defendant has two clear cut options; one of filing appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. It has also been mentioned therein that the incumbent can take recourse to both the proceedings simultaneously, but in the event of appeal is dismissed, as a result of ex parte passed by the trial court merges with the order passed by the appellate court, having regard to the Explanation appended to Order 9 Rule 13 CPC a petition under Order 9 Rule 13 would not be maintainable. However, the Explanation I appended to the said provision does not suggest that the converse is also not true. In the said case, it has also been mentioned that the said right can be taken away if the same is in derogation or contrary to any statutory provision. Relevant extract of the aforesaid judgment contained in paragraphs 23 to 28 and 36 to 38 are being extracted below: "23. The question which now arises for consideration is as to whether the First Appeal was maintainable despite the fact that an application under Order 9, Rule 13 of the Code was dismissed. 24. An appeal against an ex-parte decree in terms of Section 96(2) of the Code could be filed on the following grounds: (i) The materials on record brought on record in the ex-parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and (ii)The suit could not have been posted for ex-parte hearing. 25.In an application under Order 9, Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date. 26.When an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order , Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true. 27.In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an Appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein. 28.It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions. 36.However, it appears that in none of the aforementioned cases, the question as regard the right of the defendant to assail the judgment and decree on merit of the suit did not fall for consideration. A right to question the correctness of the decree in a First Appeal is a statutory right. Such a right shall not be curtailed nor any embargo thereupon shall be fixed unless the statute expressly or by necessary implication say so. [See Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. (2004) 5 SCC 385 and Chandravathi P.K. and Others Vs. C.K. Saji and Others, (2004) 3 SCC 734]
37.We have, however, no doubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available thereagainst, viz, to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First Appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law.
38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex-parte hearing by the Trial Court and/ or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Section 96(2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr. Choudhari that the 'Explanation' appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this court in Rani Choudhury (supra), P. Kiran Kumar (supra) and Shyam Sundar Sarma Vs. Pannalal Jaiswal and Others [2004 (9) SCALE 270]."
On the parameters of judicial pronouncements as noted above and the statutory provisions as quoted above, the situation which emerges in the present case, that two fold remedy has been provided for to an incumbent against whom injunction order has been passed and who is dissatisfied with the said order of injunction. Rule 4 of Order 39 provides that an 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. Order 43 Rule 1 (r) provides that an appeal shall lie from an order under Rule 1, 2 and Rule 4 of Order 39. The Legislature deliberately and consciously has provided the forum of appeal against the order passed under Rules 1, 2, and 4 of Order 39; the stages being different. Under Order 39 rule 1 of the Code whenever an ex parte order of injunction is passed, against the same also appeal is maintainable under Order 43 Rule 1 (r) and at the point of time said appeal is decided, the question to be agitated is as to whether in the facts of the case trial court was justified in issuing injunction order and no new material can be taken into consideration until application under Order 41 Rule 27 of the Code is taken on record and allowed. Said appeal in question has to be confined on the material which was available before the Court at the point of time when an injunction order had been granted ex parte. As far as proceeding under Order 39 Rule 4 of the Code is concerned, a person who is dissatisfied with the order of injunction has a right to apply for revocation, variation or for rescinding the order of injunction and therein all necessary material particulars can be placed before the Court in respect of his claim preferred under Order 39 Rule 4 of the Code, and the Court has to consider the claim of a party on the premises as to whether it would be just and in the interest of justice to continue with injunction order or not in the facts of the case and even against the said order passed either way, remedy of appeal has been provided for against the order passed under Order 39 Rule 4 of the Code. Appeal is maintainable both against grant of ex parte injunction order as well as against the order passed after hearing both the parties. Thus, there is procedural difference in the two and the stage of the appeal is also different, for the simple reason that while considering the appeal under Order 43 Rule 1 (r) against the order passed under Order 39 Rule 1 of the Code, only material on which injunction order has been passed is taken into consideration, whereas in the appeal preferred under Order 43 Rule 1 (r) against the order passed under Rule 4 of Order 39 entire material has to be taken into consideration, including the documents which have been submitted by the defendant at the said stage of the proceeding. There is no statutory embargo, whatsoever, imposed upon the defendant to invoke the two proceedings simultaneously. Apex Court in the case of Transcore vs. Union of India , AIR 2007 SC 212, has considered at length, the doctrine of election of remedies, by mentioning that said doctrine is evolved by Courts on equality, and there are three elements of election, namely existing of two or more remedies; inconsistencies between such two remedies and choice of one of them. If one of the three elements is not there, the doctrine will not apply. Here the remedies provided for are not at all inconsistent to each other, rather both the remedies recognize existence of same facts. Both, the application under Order 39 Rule 4 as well as appeal under Order 43 Rule 1 (r) are to be decided on different parameters as already noted above. In view of this the proposition that the appeal in question is not maintainable, cannot be accepted, for the simple reason that right of appeal is statutory right and such right cannot be curtailed unless the statute expressly or by necessary implication says so. The sentence "the choice is for the party affected by the order either to move the appellate court or to approach the same court which passed ex parte order for any relief" as mentioned in the case of A. Venkatasubbiah Naidu vs. S. Chellappan and others, 2007 (7) SCC 695, has to be read and understood, in the backdrop of the issue before Apex Court. At no point of time, the issue of simultaneous election of remedy was ever engaging the attention of Court, moreover judgments cannot be substitute of statutory provisions, and same has to be seen, in the facts and circumstances of each case. Here, scheme of things provided for do not reflect that by necessary implication or by express statutory provision, appeal in question is in any way prohibited on application also being moved under Order 39 Rule 4 of the Code. It is well known rule of construction, that a Court must construe a section unless it is impossible to do so, to make such provision workable rather proceeding to make it unworkable. No word can be rendered ineffective or purpose less. Courts are required to carry out legislative intent fully and completely while construing provisions, full effect is to be given to the language used therein, giving reference to context and the other provisions of the Statute, and by construction a provision shall not be reduced as dead letter. Here the language used in C.P.C. is very clear and does not require any interpretation, as there is no ambiguity in it, rather the same is clear and specific. Dual remedy provided for, cannot be made redundant and otiose merely because one of the remedies has been availed of. However, when both the remedies are opted and the matter is inter se parties, then whatsoever, decision is taken, such decision has to be taken into account by the court dealing with such cases and the said court will weigh the impact of the decision, which has been taken at the earlier point of time. In view of this the objection so raised is unsustainable.
Consequently, in view of the discussions made above, present writ petition is dismissed.
Order Date :- 18.01.2012 SRY