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Lakhai v. Ram Niwas And Others
Factual and Procedural Background
A suit (No. 429 of 1986) was filed by the appellant in the court of Munsif, Baghpat, district Meerut seeking a temporary injunction against the respondents. The appellant applied under Order 39, Rule 1 of the Code of Civil Procedure (CPC) for a temporary injunction, but the trial court did not grant the injunction and instead issued notices on the application. The appellant challenged this by filing Civil Revision No. 340 of 1986 before the District Judge, Meerut. Subsequently, the appellant again applied for a temporary injunction, which was granted on 1-12-1986. The respondents objected, and the District Judge vacated this injunction by order dated 15-12-1986. The appellant then filed the present first appeal under Order 43, Rule 1(r) read with Section 104 of the CPC against the order dated 15-12-1986.
Legal Issues Presented
- Whether an appeal lies against the order dated 15-12-1986 rejecting the application for grant of temporary injunction passed by the District Judge?
- Whether the provisions of Section 141 of the CPC, which makes procedural provisions applicable to miscellaneous proceedings, extend to confer a substantive right of appeal in such miscellaneous proceedings?
Arguments of the Parties
Respondents' Arguments
- The appeal against the order dated 15-12-1986 is not maintainable as the order is not appealable under the relevant provisions of the CPC.
Appellant's Arguments
- The appeal is maintainable under Order 43, Rule 1(r) read with Section 104 of the CPC.
- Section 141 of the CPC applies to miscellaneous proceedings, making the procedural provisions of the Code applicable, and thereby also making the appeal provision applicable to the present case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| H.K Dada (India) Limited v. State of Madhya Pradesh, AIR 1953 SC 221 | Distinction between substantive rights and procedural provisions under Section 141 CPC | Supported the principle that Section 141 applies only to procedural matters and not substantive rights like the right of appeal. |
| Garika Pati v. Subbiah Choudhary, AIR 1957 SC 540 | Clarification on the scope of Section 141 CPC | Confirmed that Section 141 does not confer substantive rights such as appeals in miscellaneous proceedings. |
| Thresia v. Xavier, AIR 1977 Ker 118 | Applicability of procedural provisions under Section 141 CPC to non-suit proceedings | Held that only procedural provisions of the CPC are applicable under Section 141, not substantive rights like appeals. |
| Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706 : AIR 1974 SC 2105 | Interpretation of Section 141 CPC and substantive vs procedural rights | Emphasized that substantive rights are not made applicable by Section 141 to non-suit proceedings. |
| Union of India v. N.K Private Ltd., AIR 1972 Delhi 202 | Scope of Section 141 CPC | Held that Section 141 applies only to procedure and not to substantive rights such as the right of appeal. |
| Chandar Sahai v. Durga Prasad, AIR 1924 All 682 | Appealability of orders in miscellaneous proceedings under Section 141 CPC | Held that no appeal lies against certain orders in miscellaneous proceedings by virtue of Section 141 CPC when no appeal is expressly provided. |
| Rameshwar Dutt Singh v. Harihar, AIR 1937 Oudh 344 | Conflicting precedent regarding appealability in miscellaneous proceedings | The court respectfully disagreed with this precedent, holding it inconsistent with the principle that Section 141 does not confer substantive rights. |
Court's Reasoning and Analysis
The court examined the provisions of Section 104 and Order 43, Rule 1(r) of the CPC, which enumerate the orders from which an appeal lies. It found that an appeal lies only against orders under Rules 1, 2, 2A, 4, and 10 of Order 39, but not under Rule 3. Since the impugned order was an order rejecting the application for temporary injunction after notice was issued (an order under Rule 1), the appealability was considered. However, the court emphasized that the right of appeal is a substantive right, not a procedural one.
The court then analyzed Section 141 of the CPC, which makes procedural provisions applicable to miscellaneous proceedings "as far as applicable," but does not extend to substantive rights such as the right of appeal. This interpretation was supported by authoritative Supreme Court and High Court decisions, including H.K Dada, Garika Pati, Thresia v. Xavier, Babubhai Muljibhai Patel, and Union of India v. N.K Private Ltd.
Further, the court rejected the appellant's reliance on Section 141 to claim a right of appeal in the miscellaneous proceeding, holding that no appeal lies against the impugned order in the absence of a specific provision conferring such a right. The court also respectfully disagreed with the contrary view in Rameshwar Dutt Singh.
Holding and Implications
The court sustained the preliminary objection raised by the respondents and dismissed the appeal against the order dated 15-12-1986 rejecting the application for temporary injunction.
The parties were directed to bear their own costs. The court clarified that any observations made while rejecting the application for temporary injunction would not affect the merits of the underlying revision itself.
This decision directly affects the parties by denying the appellant the right to appeal against the impugned order but does not establish any new precedent beyond reaffirming existing principles regarding the scope of Section 141 CPC and appealability under Order 43, Rule 1(r).
1. A Suit No. 429 of 1986 was filed by the appellant in the court of Munsif, Baghpat, district Meerut for issue of a temporary (mandatory?) injunction against the respondents. In the said suit an application was made under Order 39, Rule 1 of the Code of Civil Procedure for issue of a temporary injunction. No interim injunction was granted on this application but the trial court issued notices on the application. Against the order issuing notices to the respondents, the appellant filed Civil Revision No. 340 of 1986 in the court of District Judge, Meerut. After filing the revision an application was made for grant of temporary injunction again. The temporary injunction was granted by an order dated 1-12-1986. The respondents filed objections to the grant of temporary injunction. The District Judge by an order dated 15-12-1986 rejected the application for grant of temporary injunction and vacated the order dated 1-12-1986. Against the order dated 15-12-1986 the present first appeal from order has been filed under Order 43, Rule 1(r) read with Section 104, Code of Civil Procedure.
2. Learned counsel for the respondents has taken a preliminary objection that the appeal against the order dated 15-12-1986 is not maintainable. I have heard the learned counsel for the parties on this preliminary objection. Section 104 of the Code of Civil Procedure is as follows:
“104. Orders from which appeal lies.— (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:—
(ff) an order under Section 35A;
(ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or S. 92 as the case may be;
(g) an order under Section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules;
Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this section.”
3. This section makes it clear that an appeal shall lie from only those orders which have been enumerated in this Section and from no other order. The effect is that only those orders under the rules which have been enumerated in the Order 43, Rule 1 of Civil Procedure Code are appealable and none others. Section 105, C.P.C further places a bar on the filing of an appeal against an order made by a court in the exercise of its original or appellate jurisdiction unless an appeal is expressly provided against such order.
4. Order 39, C.P.C lays down the provision of grant of temporary injunction and interlocutory orders. Under Order 39 Rule 1, C.P.C the court is empowered to issue a temporary injunction in any suit. Similarly under Rule 2 the court has been given a power for issue of temporary injunction to restrain the repetition or continuance of breach in a suit. Rule 2A, C.P.C lays down consequences of disobedience of breach of injunction and Rule 3 of Order 39, C.P.C empowers the court to direct notice to opposite party where it appears to the court that it is necessary to do so before granting the applicant temporary injunction.
5. The relevant portion of Order 43, Rule 1, C.P.C as well as sub-rule (r) is quoted below:—
“1. Appeals from orders.— An appeal shall lie from the following orders under the provisions of Section 104, namely:—
(a)………………………
(r) an order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order XXXIX;”
6. From the above sub-clause (r) it is apparent that an appeal lies only against an order under Rule 1, Rule 2, Rule 2A, Rule 4, and Rule 10 of Order 39, C.P.C The mere order issuing notice on an application for grant of an injunction clearly comes under the provisions of Rule 3 of Order 39. An order under Rule 3 of Order 39 is not appealable under Order 43, Rule 1(r). It is, therefore, clear that whenever a court passes an order for issue of notice on an injunction application, this order is not appealable under Order 43, Rule 1(r), Civil Procedure Code.
7. Since notice had been issued by the court in the instant case on the application for grant of a temporary injunction, the appellant had filed a revision before the District Judge, Meerut under Section 115 of Code of Civil Procedure. In this revision he had moved an application for grant of a temporary injunction under Order 39, Rule 1, C.P.C This application has been rejected by the impugned order. The argument of the learned counsel for the appellant is that since this is a miscellaneous proceeding, Section 141 of the Code of Civil Procedure would apply to this proceeding and as such the procedure provided in the Code, in regard to the suits is applicable and as such the provisions of filing of an appeal under Order 43, Rule 1(r) would also be applicable and consequently the appeal would lie in this Court. I am unable to agree with this submission made by the learned counsel for the appellant.
8. Section 141 of the Code of Civil Procedure reads as follows:—
“141. Miscellaneous proceedings. — The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction.
Explanation.—In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.
9. Section 141 of the Code of Civil Procedure only makes the procedure contained in the Code applicable to miscellaneous proceedings as far as it can be made applicable and not all provisions of the Code. The right to file an appeal is a substantive right and not a matter of procedure. This principle of law is well settled.
10. Reference may be made in this connection to two cases of the Hon'ble Supreme Court, H.K Dada (India) Limited v. State of Madhya Pradesh, AIR 1953 SC 221 and Garika Pati v. Subbiah Choudhary, AIR 1957 SC 540. It will be appropriate for me to further refer to two cases wherein it has been specifically held that Section 141 does not apply to the provisions relating to substantive rights. In Thresia v. Xavier, AIR 1977 Ker 118 a Full Bench of the Kerala High Court has held that the provisions in the Civil Procedure Code contained both substantive and procedural rights and what is made applicable to proceedings other than suits by Section 141 of the Code of Civil Procedure is only those provisions which deal with matters of procedure and even in respect of those matters only those which could be made applicable, and not the substantive rights. The relevant portion of the opinion of the court is quoted below:—
“In Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706 : AIR 1974 SC 2105 another decision of the Supreme Court, it was held that the object of Article 226 being to provide quick an inexpensive remedy to aggrieved parties it would be incorrect to assimilate and incorporate all the procedures of a suit into a proceeding under Art. 226. There the Supreme Court emphasised the words “as far as it can be made applicable” occurring in S. 141 of the C.P.C to show that it was not all procedures for suits which were intended to be made applicable to proceedings other than suits in civil courts. Provisions in the C.P.C contain both substantive and procedural rights and what is made applicable to proceedings other than suits by S. 141 of the C.P.C is only those provisions which deal with matters of procedure and even in respect of those matters only those which could be made applicable. The right of a person to institute a proceeding as a pauper is a substantive right. Consequently the provisions of Order XXXIII cannot be applied to a proceeding under Article 226 of the Constitution.”
11. Similarly in Union of India v. N.K Private Ltd., AIR 1972 Delhi 202, the Division Bench of the Delhi High Court has held that Section 141, C.P.C applies only the procedure under the Code to other proceedings in a court of civil jurisdiction. The right of appeal and other substantive rights are not regarded as mere procedure and are not, therefore, made applicable by Section 141, C.P.C
12. I respectfully agree with the principles laid down in both these cases. Section 141, C.P.C only makes procedure laid down in the Code of Civil Procedure applicable to miscellaneous civil proceedings as far as applicable but this does not make the provision relating to substantive rights applicable to the miscellaneous civil proceedings.
13. As far as back in 1924 in Chandar Sahai v. Durga Prasad, AIR 1924 All 682 (2) Hon'ble Sulaiman, J. (as he then was) while considering whether an order rejecting an application for restoration of application for setting aside the ex parte decree is appealable, held that by virtue of Section 141, C.P.C no right of appeal can be claimed against such an order. He opined as follows:—
“An appeal lies from an order refusing to set aside an ex parte decree, but under the Code of Civil Procedure no appeal is provided for from an order dismissing an application which is for restoration of an application for setting aside an ex parte decree. Nor can a right of appeal be claimed by virtue of Section 141 of the Code of Civil Procedure, when Order 43 of the Code makes no provision for such an appeal.”
14. I, respectfully, agree with the decision given by Sulaiman, J. in the case of Chandar Sahai (supra). Learned counsel for the appellant has, however, cited a decision of Oudh Chief Court in Rameshwar Dutt Singh v. Harihar, AIR 1937 Oudh 344. I respectfully disagree with the view taken in the said case. Since I have held that the right of appeal is a substantive right and Section 141 of the Code of Civil Procedure does not apply to substantive rights, in my opinion, no appeal lies against the impugned order rejecting an application for grant of temporary injunction made in the revision pending before the court below in the absence of specific right of appeal against such an order.
15. In the result, preliminary objection raised by the learned counsel for the respondents is sustained. The appeal is accordingly dismissed.
16. Parties shall bear their own costs. It is, however, made clear that any observation made while rejecting the application for grant of a temporary injunction shall not affect the merits of the revision itself.
17. Appeal dismissed.
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