IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 829 of 2009 Sri Sunil Madan S/o Late Sri Madan, R/o 3/8/1 Prem Nagar,Dehradun. ……. Petitioner Versus Sri Bela Ram Batra S/o Late Sri Topan Dass, R/o 3/8/1 Prem Nagar, Dehradun through attorney holder Sri Ramesh Kumar Batra S/o Sri Bela Ram Batra, R/o 3/8/1 Prem Nagar, Dehradun. …….. Respondent …………………………. Date: June 12, 2009. Hon’ble B.S.Verma,J. Heard Sri Neeraj Garg, learned counsel for the petitioner and Sri Jitendra Chaudhary, learned counsel for the respondent. 2. Learned counsel for the respondent has submitted that he is not willing to file counter affidavit. Only the legal question involved is to be decided in the writ petition and it is further submitted that the writ petition may be disposed of at the admission stage finally. 3. The writ petition has been filed by the petitioner for quashing the orders dated 12.05.2009 and 27.05.2009 passed by District Judge, Dehradun in Misc.Civil Appeal No.86 of 2009, Bela Ram Batra versus Sunil Madan. 4. The facts, in brief, are that the respondent/plaintiff had filed Original Suit No. 343 of 2009, Bela Ram Batra versus Sunil Madan before the Civil Judge (Junior Division), Dehradun and also moved application for temporary injunction under Order XXXIX Rule 1 2 & 2 read with Sec. 151 of the C.P.C. The court below did not find favour to grant ex parte temporary injunction and on 08.05.2009 notices were ordered to be issued to the defendant/petitioner to file objection on the application under Order XXXIX Rule 1 & 2 C.P.C. Aggrieved by the order dated 08.05.2009, the respondent/plaintiff preferred appeal before the District Judge, which was numbered as Misc. Civil Appeal No.86 of 2009. The said miscellaneous civil appeal was admitted by Incharge District Judge on 12.05.2009 and allowed the injunction application ex parte against the petitioner/defendant thereby directing both the parties to maintain status quo till 27.05.2009 i.e. the next date fixed in the appeal. On 27.05.2009, the case was adjourned on the application of defendant/petitioner and stay order was extended till 09.07.2009 i.e. the next date fixed for hearing. Aggrieved by both the orders i.e. 12.05.2009 and 27.05.2009, the petitioner preferred this writ petition. 5. The learned counsel for the petitioner has contended that there is no provision of appeal under Order XLIII of C.P.C. Only the appeal is maintainable if the injunction is granted or refused as per provision of Order XLIII Rule 1 (r) C.P.C. The order was passed by the trial court under Order XXXIX Rule 3 of C.P.C. It is also contended on behalf of the petitioner that appeal is maintainable only if the order is passed under Order XXXIX Rule 1 & 2 C.P.C. No order was passed under Order XXXIX Rule 1 & 2 C.P.C. The order was passed under Order XXXIX Rule 3 C.P.C. by the trial court. In support of his contention, the learned counsel for the petitioner has placed reliance in a case Banarsi and others versus Incharge District Judge, Gonda and others, reported in 2005 (23) LCD 285, Allahabad High Court (Lucknow Bench). In the said judgment in Para-16 it has been observed that after referring the matter to a third Judge, Agarwala, J. for his opinion on the issue involved, Hon’ble Agarwala, J. answered the first question in negative which has been quoted in Para-17 of the aforesaid judgment as under:- 3 “I, therefore, think that when the Court refuses to grant an ex parte injunction and issues notice to the other side of the application for injunction, it has passed no order under Rule 1 or 2 and, therefore, no appeal can lie from such an order. But when the Court grants the application for injunction ex parte, an appeal lie because the application made under Rule 1 or rule 2 is disposed of.” 6. I am fortified in my view by the opinion given by the Hon’ble Agarwal J. in the aforesaid case. Order XLIII Rule 1 (r) C.P.C. reveals that only appeal is maintainable against the order passed under Order XXXIX Rule 1 & 2 C.P.C. The learned Incharge District Judge has erred in law in admitting the appeal against the order which was passed under Order XXXIX Rule 3 C.P.C. by issuing notice to the defendant to file objection against the temporary injunction application. 7. In view of above discussion, the writ petition is allowed. The impugned orders dated 12.05.2009 and 27.05.2009 are quashed and it is held that the appeal, which was preferred against the order dated 08.05.2009 passed in Original Suit No.343/2009, is not maintainable. (B.S. Verma, J.) 12.06.2009 P.Singh