This writ petition has been filed for a direction to reject the plaint of the original suit no.1529 of 2012 (M/s Uflex Limited vs. Jawala Engineering Private Limited and others) and further to set aside the impugned ex-parte stay order granted by the Civil Judge (Senior Division) dated 23.11.2012 in the said suit.
Sri M.K.Gupta and Sri Samit Gopal have filed their appearance today on behalf of the respondent and have raised a preliminary objection that this writ petition is not maintainable in view of the provisions of Order 43 Rule 1(r) C.P.C.
Sri Sunil Kumar, learned counsel for the petitioner has raised a objection that appeal under Oder 43 Rule 1(r) is not maintainable.
Replying to this objection Sri M.K.Gupta has placed a reliance on a Full Bench decision of this Court reported in AIR 1970 Allahabad 376 Zila Parishad Budaun and others vs. Brhma Rishi Sharma. The relevant portion of the Full Bench is contained in paras 16 and 18 of the judgement which reads as follows:-
"16. The language and the object of Rule 1(r) of Order 43 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 appeal as provided for under Order 43, Rule 1( r), or (2) straightway 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 get the ex parte decree set aside by the same court.
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18. We are unable to accept this submission of the learned counsel for the respondents. As already discussed above, 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 takes a final decision in the matter for the time being and the expression of this decision in our opinion is a final order for the duration it is passed. Such an order is contemplated by Rules 1 and 2 of Order 39, C.P.C.. We have looked into the authorities referred to above, but they are not applicable to the facts of this case and they have little bearing on the precise point raised by the learned counsel for the respondents."
Subsequently the above Full Bench decision has been followed by this Court in the case reported in 1996 (27) ALR 149 Mohd. Rafi Khan (Dr.) v. District Judge, Aligarh. The relevant paragraph is para-5 which reads as follows:-
"5. I have considered the contention of the learned counsel for `the petitioner and have also carefully perused the aforesaid decisions cited by him. In the case of Zila Parishad (Supra) (F.B.) the question which was referred for the decision was to the effect whether an Ex-parte order issuing injunction against the defendant was appealble in the Full Bench was whether a miscellaneous appeal under Order 43 Rule 1 (r ) lay against an ex-parte ad-interim injunction order or only against the final order passed by the trial court after hearing the defendants. It was held that even against an ex-parte order issuing temporary injunction it was open to the defendants to file an appeal straightway under Order 43 Rule 1 ( r) C.P.C. While considering the argument in the said case the following observations were made in paragraph 16 of the judgement:-
"16. The language and the object of Rule 1(r) of Order 43 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 O.39 and if unsuccessful avail the right of appeal as provided for under Order 43, Rule 1( r), or (2) straightway 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 get the ex parte decree set aside by the same court.
In view of the law laid down by the Full Bench this writ petition is not maintain able and is accordingly dismissed.
Order Date :- 19.12.2012 Asha