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Smt. Annu Verma v. The Chief Manager & Others - WRIT - C No. 10405 of 2006 [2006] RD-AH 4100 (21 February 2006)


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Heard Sri M.A. Khan, holding brief of Sri A.K. Solanki learned counsel for the petitioner and Sri S.S. Sisodia, learned counsel for respondent No.1.

This petition challenges the order dated 25.1.2006 whereby the appellate court has admitted the appeal after hearing both the parties and has fixed a date for disposal of the same.

The learned counsel contends that the trial court has granted temporary injunction by the exparte order which has been made subject of challenge in the appeal before the court below and since the matter was already pending before the trial court for final disposal of the temporary injunction, the appeal was not competent. The learned counsel has cited the case law of A.Venkatasubbiah Naidu Vs. S. Chellappan and others, AIR 2000 (SC) 3032. The learned counsel, thus, has emphasised that the appellate court in the present circumstances should have entertained and admitted the appeal for hearing.

The provisions of Order XLIII Rule 1(r) C.P.C. are unambiguous. Any order passed under Order  XXXIX Rules 1 and 2 C.P.C. has been made appealable and even an exparte order granting temporary injunction passed by the court being an order under Order XXXIX Rules 1 and 2 C.P.C. is an appealable order and in case the court below has entertained the appeal and admitted it for final hearing, no fault can be found out with such order. The aforesaid case law is in reference to such contingencies which have some over-looking to the procedural norms as contained in the Code of Civil Procedure and in that case if the party is aggrieved against the order of the trial court it can prefer appeal and in that context only the court has observed that the appeal would otherwise be no maintainable. In that case the entire scope of Order XLIII Rule 1 (r ) C.P.C. have not been taken into consideration by the Apex Court. Therefore, in the aforesaid view of the matter that by impugned order, the appellate court had entertained the appeal against the exparte order passed under Order XIL Rule 1 C.PC., the appeal is competent and the present petition against the said order has absolutely no merit.

The petition is accordingly dismissed.

The appeal, which is pending for hearing, if the parties cooperate, shall be decided on the date already fixed in the case.




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