Analysis of Order 43 Rule 1(r) CPC

Appeals from Interlocutory Injunction Orders: A Comprehensive Analysis of Order 43 Rule 1(r) of the Code of Civil Procedure, 1908

Introduction

Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (CPC) is a pivotal provision within Indian civil jurisprudence, delineating the specific interlocutory orders pertaining to temporary injunctions from which an appeal shall lie. Temporary injunctions, governed by Order 39 of the CPC, are crucial remedies sought to preserve the subject matter of a suit, prevent irreparable harm, or maintain the status quo pending final adjudication. Given the significant impact such orders can have on the rights and interests of litigants, Order 43 Rule 1(r) provides an essential mechanism for appellate scrutiny, ensuring that the discretionary power vested in trial courts is exercised judiciously and in accordance with established legal principles. This article undertakes a comprehensive analysis of Order 43 Rule 1(r), examining its statutory framework, judicial interpretations regarding the nature of appealable orders, its interplay with other provisions of the CPC and Letters Patent, the scope of appellate review, and relevant case law that has shaped its application.

Statutory Framework: Section 104 and Order 43 Rule 1(r) CPC

The right to appeal is a creature of statute, and in the context of appeals from orders (as distinguished from decrees), Section 104 of the CPC is the foundational provision. Section 104(1) stipulates that an appeal shall lie from certain enumerated orders and, importantly, from "any order made under rules from which an appeal is expressly allowed by rules" (Section 104(1)(i) CPC). This directly leads to Order 43 of the CPC.

Order 43 Rule 1 CPC, titled "Appeals from orders," lists various orders passed under different provisions of the CPC that are appealable. Clause (r) of Order 43 Rule 1 specifically provides that an appeal shall lie from:

"(r) an order under rule 1, rule 2, rule 2A, rule 4 or rule 10 of Order XXXIX;"

The rules of Order 39 referred to in Order 43 Rule 1(r) are:

  • Order 39 Rule 1: Deals with cases in which a temporary injunction may be granted, such as where property in dispute is in danger of being wasted, damaged, alienated, or wrongfully sold, or where the defendant threatens to dispossess the plaintiff or cause injury. (Innovative Pharma Surgicals v. Pigeon Medical Devices Pvt. Ltd. And Others, Andhra Pradesh High Court, 2004).
  • Order 39 Rule 2: Provides for injunctions to restrain the repetition or continuance of a breach of contract or other injury.
  • Order 39 Rule 2A: Prescribes consequences for disobedience or breach of an injunction, including attachment of property and detention in civil prison.
  • Order 39 Rule 4: Allows for any order for an injunction to be discharged, varied, or set aside by the court, either on application by a party dissatisfied with such order or on the court's own motion.
  • Order 39 Rule 10: Empowers the court to direct the deposit of money or other things in court, or delivery to the party entitled, where the subject matter of the suit is money or some other thing capable of delivery and a party admits he holds it as trustee or that it belongs or is due to another party.

Thus, any order passed by a court invoking these specific rules of Order 39 is appealable by virtue of Order 43 Rule 1(r) CPC. The Andhra Pradesh High Court in Innovative Pharma Surgicals v. Pigeon Medical Devices Pvt. Ltd. And Others (2004) explicitly reiterated that an order under Order 39 Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of CPC is an appealable order under Order 43 Rule 1(r).

Judicial Interpretation of "Order" Appealable under Order 43 Rule 1(r)

A significant body of jurisprudence has evolved around what constitutes an "order" under the specified rules of Order 39 that would trigger the appellate remedy under Order 43 Rule 1(r). While orders explicitly granting or refusing an injunction, or orders under Rule 2A, Rule 4, or Rule 10, are clearly appealable, complexities arise with orders that are not definitive grants or refusals.

Orders Granting or Refusing Injunctions

Orders that unequivocally grant a temporary injunction under Order 39 Rules 1 or 2, or that explicitly refuse such an injunction, fall squarely within the ambit of Order 43 Rule 1(r). For instance, in Punam Laroia v. Sanjeev Laroia (Delhi High Court, 2004), the court dismissed an application under Order 39 Rules 1 & 2 and vacated an ex-parte ad interim injunction; such an order of dismissal/refusal is appealable. Similarly, an order granting an injunction, as was challenged in appeals leading to landmark Supreme Court decisions like Gujarat Bottling Co. Ltd. And Others v. Coca Cola Co. And Others (1995 SCC 5 545) or Wander Ltd. And Another v. Antox India P. Ltd. (1990 SCC SUPP 1 727), would have originated from an appealable order under Order 43 Rule 1(r) at an earlier stage.

The Nature of Ex-Parte Ad-Interim Injunction Orders

Ex-parte ad-interim injunctions, granted without hearing the opposing party, are passed under Order 39 Rules 1 or 2. The Supreme Court in A. Venkatasubbiah Naidu v. S. Chellappan And Others (2000 SCC 7 695) noted that Order 43 Rule 1 makes orders passed under certain rules of Order 39 appealable, implying that ex-parte orders are included. However, the Madras High Court in Abdul Shukoor Sahib v. Umachander And Others (1976 SCC ONLINE MAD 57) pondered whether an appeal under Order 43 Rule 1(r) would lie against an ex-parte interim order that is not grounded on reasons, suggesting that an appeal is maintainable where the judicial authority has applied its mind and stated grounds. Despite this, the general consensus is that an ex-parte order of injunction is appealable, even though the aggrieved party also has the remedy of applying to the same court for its discharge or variation under Order 39 Rule 4 CPC.

Orders Merely Issuing Notice or Deferring Decision (Implied Refusal)

A contentious issue has been whether an order that does not explicitly grant or refuse an ex-parte injunction but merely issues notice to the defendant under Order 39 Rule 3 CPC, or defers the decision, is appealable. The concern is that such an order, by not granting immediate relief, effectively refuses the ex-parte injunction sought.

The Supreme Court in A. Venkatasubbiah Naidu observed that if a court does not pass an order on an ex-parte injunction application but defers it, and such deferral causes prejudice or amounts to a refusal, it could be appealable. This line of reasoning was more explicitly adopted by the Gauhati High Court in Sajjan Kumar Tharad & Anr. v. Deoris Marbaniang (2010 SCC ONLINE GAU 755). Relying on A. Venkatasubbiah Naidu, the Gauhati High Court held that an order issuing notice simpliciter under Order 39 Rule 3, without granting or refusing an ex-parte ad-interim injunction, amounts to a refusal to grant such ex-parte relief and is therefore appealable under Order 43 Rule 1(r) CPC. The court reasoned that Rule 3 of Order 39 only lays down procedure and is not a substantive provision for grant of injunction, so an 'order of notice' implies declination of ex-parte injunction under Rules 1 and 2. This interpretation acknowledges the practical reality that delaying interim relief can be as detrimental as an express refusal.

The question referred by the Madhya Pradesh High Court in Mohd. Sadik v. Smt. Sahida Bi And Ors. (1996) – "As to whether the order which is not the order of grant of an injunction under the provisions of Order 39, Rule 1 of the Code of Civil Procedure is an appealable order as provided under Order 43 Rule 1 (r) of the Code of Civil Procedure?" – further underscores the judicial deliberation on this point.

Orders Directing 'Status Quo'

Orders directing parties to maintain 'status quo' are common in interlocutory proceedings. The Allahabad High Court in Ritesh Agrawal v. Commissioner, Devi Patan Mandal, Gonda And Others (2024) considered that an order directing 'status quo' would fall under Order 39 Rule 1 and 2 CPC and, consequently, would be appealable under Order 43 Rule 1(r) read with applicable state amendments or related appeal provisions.

The Interplay with Letters Patent Appeals and Section 104 CPC

The Supreme Court's landmark decision in Shah Babulal Khimji v. Jayaben D. Kania And Another (1981 SCC 4 8) significantly clarified the relationship between appeals under the CPC (specifically Section 104 and Order 43 Rule 1) and Letters Patent appeals (intra-court appeals in High Courts). The Court held that Section 104, read in conjunction with Order 43 Rule 1 CPC, applies to internal appeals within High Courts from orders of a Single Judge. Furthermore, it adopted a broader interpretation of "judgment" under the Letters Patent, encompassing interlocutory orders that affect valuable rights of the parties. An order granting or refusing an injunction under Order 39 Rules 1 or 2, which is appealable under Order 43 Rule 1(r), would generally qualify as a "judgment" if it decides matters of moment or affects vital and valuable rights of the parties and works serious injustice to the party concerned. Thus, such orders passed by a Single Judge of a High Court are typically appealable to a Division Bench both under Order 43 Rule 1(r) (read with Section 104) and under the relevant clause of the Letters Patent.

Scope and Limitations of Appeals under Order 43 Rule 1(r)

Nature of Appellate Review

The appellate court, while hearing an appeal under Order 43 Rule 1(r), does not conduct a de novo review. The grant or refusal of a temporary injunction rests on the discretionary power of the trial court. The appellate court will not interfere with this discretion merely because it might have taken a different view. Interference is warranted only if it is demonstrated that the trial court's order is arbitrary, capricious, perverse, or based on an incorrect application of legal principles, or if it has ignored relevant evidence or considered irrelevant material. (Wander Ltd. And Another v. Antox India P. Ltd., 1990; Skyline Education Institute (India) Private Limited v. S.L Vaswani And Another, 2010 SCC 2 142).

The appellate court examines whether the trial court correctly considered the three cardinal principles for granting temporary injunctions:

  1. Prima Facie Case: Whether the plaintiff has established a triable issue that needs investigation. (Morgan Stanley Mutual Fund v. Kartick Das, 1994 SCC 4 225).
  2. Balance of Convenience: Whether the hardship or inconvenience to the plaintiff if the injunction is refused outweighs that to the defendant if it is granted. (Gujarat Bottling Co. Ltd. And Others v. Coca Cola Co. And Others, 1995).
  3. Irreparable Injury: Whether the plaintiff would suffer injury that cannot be adequately compensated by damages if the injunction is not granted. (A. Venkatasubbiah Naidu v. S. Chellappan And Others, 2000).

Procedural Compliance

Appellate courts also scrutinize procedural compliance. For instance, non-compliance with Order 39 Rule 3-A CPC, which mandates the endeavor to dispose of an ex-parte injunction application within thirty days, can be a significant factor. The Supreme Court in A. Venkatasubbiah Naidu emphasized the importance of adhering to such procedural safeguards.

Limitation under Section 104(2) CPC

Section 104(2) CPC provides that no appeal shall lie from any order passed in appeal under Section 104. This means that if an appeal is filed under Order 43 Rule 1(r) (which is an appeal under Section 104(1)(i)), any order passed by the appellate court in such an appeal is not further appealable as an "appeal from an order." The Karnataka High Court in Shivappa v. Basavaraj (2007 SCC ONLINE KAR 527) clarified an important distinction. It held that Section 104(2) does not bar a first appeal under Order 43 Rule 1(r) against an interlocutory injunction order passed by a court that is itself hearing a regular appeal (e.g., an appeal under Section 96 CPC). In such a scenario, the appeal against the interlocutory injunction order is the *first* appeal from *that specific order*, and thus maintainable. Section 104(2) bars a *second* appeal from an order which was itself passed in an appeal from an order.

Exclusion for Certain Courts

It is pertinent to note that, as per Order 50 Rule 1(b) of the CPC, certain provisions, including Orders 41 to 45 (which cover appeals from original decrees and appeals from orders), do not extend to courts constituted under the Provincial Small Cause Courts Act, 1887, or other specified small cause courts. This was noted in Om Prakash Agarwal Since Deceased Through Legal Representatives And Others v. Vishan Dayal Rajpoot And Another (Supreme Court Of India, 2018).

Analysis of Specific Scenarios and Judicial Pronouncements

The application of Order 43 Rule 1(r) is frequently seen in diverse litigation areas. In intellectual property disputes, such as those involving trademarks or passing off, orders granting or refusing injunctions are common and often become subject matter of appeals under this provision (e.g., Skyline Education Institute, Wander Ltd., Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel And Others, 2006 SCC 8 726). Contractual disputes, especially concerning negative covenants or specific performance, also frequently involve applications for temporary injunctions, leading to appeals under Order 43 Rule 1(r) if such orders are challenged (e.g., Gujarat Bottling Co. Ltd.). Cases like Morgan Stanley Mutual Fund illustrate the use of injunctions (and subsequent appeals) in the context of financial instruments and consumer protection, where the very grant of an ex-parte injunction by a forum was challenged, and the principles for such grants were reiterated.

The procedural journey of many cases to higher courts often involves an initial appeal from an order under Order 43 Rule 1(r). For example, a First Appeal From Order (FAFO) mentioned in Rajendra Prasad Gupta v. Prakash Chandra Mishra And Others (2011 SCC 2 705) often signifies an appeal under Order 43 Rule 1. The Rajasthan High Court in Jagdish Singh v. Amba Lal & Ors. (2014 SCC ONLINE RAJ 6420) dealt with an appeal under Order 43 Rule 1(r) against an ex-parte temporary injunction, emphasizing caution in granting such orders. Similarly, Anurag Jaiswal Petitioner. v. Collector, Khandwa And Others (2018 SCC ONLINE MP 699) involved an appeal under Order 43 Rule 1(r) against an order refusing injunction, where the appellate court remitted the matter.

Conclusion

Order 43 Rule 1(r) of the Code of Civil Procedure, 1908, serves as a vital safeguard in civil litigation, providing an appellate avenue against crucial interlocutory orders concerning temporary injunctions. It ensures a check on the wide discretionary powers of trial courts in granting or refusing interim relief, which can profoundly affect the parties during the pendency of a suit. The judiciary, through consistent interpretation, has clarified the scope of appealable "orders," notably extending it to situations of implied refusal, such as the mere issuance of notice without granting ex-parte relief, thereby protecting litigants from potential prejudice caused by judicial inaction or delay. The principles governing appellate review, emphasizing limited interference with trial court discretion unless exercised arbitrarily or perversely, maintain a balance between providing timely relief and ensuring judicial propriety. The interplay with Section 104 CPC and the Letters Patent, as elucidated in *Shah Babulal Khimji*, has harmonized the appellate framework. While the provision is generally clear for explicit orders, the nuanced interpretations regarding implied refusals and the nature of ex-parte orders demonstrate the evolving jurisprudence aimed at ensuring fairness and access to justice. Order 43 Rule 1(r) thus remains a cornerstone of procedural law, upholding the principles of judicial accountability and the protection of litigants' rights in the interlocutory stages of civil proceedings in India.