In a recent judgment, the Bombay High Court ruled that while entertaining the Regular Civil Appeal, if the First Appellate Court passes interim order under Order 39 Rules 1 and 2 of the CPC, it cannot be challenged further by taking help of sub-rule (r) of Rule 1 of Order 43.
It was further held that Order 43 Rule 1 is exhaustive in nature and no order other than the ones enumerated therein, are appealable under Order 43.
The said judgment was delivered by the Bombay High Court in the matter of Shivaji Shankar Jadhav Vs. Laxman Gajanan Godbole, Appeal From Order (St.) No. 36523 of 2017, decided on 06.02.2018
The bone of contention in the present case was whether an order passed in an application for interim injunction made under Order 39 Rules 1 and 2 of the Code of Civil Procedure,1908 in Regular Civil Appeal filed under Order 41 of the CPC is appealable under Order 43 Rule (1) sub-rule (r) of the CPC.
In the present matter, the judgment and decree passed by the trial Court in the Suit was challenged in Regular Civil Appeal filed under Order 41 of the CPC. An application for interim injunction was preferred pending Appeal. The said application was allowed by the First Appellate Court and subsequently the order was appealed against under Order 43 of the CPC.
The Respondent contended that the interim order in appeal is not incorporated in the list of Rule 1 of the Order 43 of the CPC, hence, an Appeal was not maintainable under the said Order. It was further submitted that Section 104 read with Rule 1 Order 43 of the CPC are explicitly clear about what orders are appealable. It was argued that the provisions made under sub-rule (r) of Rule 1 Order 43 of the CPC are an express provision and it is restricted to the order passed under Order 39 Rule 1 of the CPC. Order 39 Rule (1) of the CPC speaks of application for interim relief made in the suit and, therefore, it cannot be stretched to appeal
On the other hand, the Appellants, relying on sub-rule (r) Rule 1 Order 43 of the CPC submitted that the sub-rule (r) is to be read by giving inclusive interpretation, so long as there is no specific exclusion that no order of refusal or grant of interim injunction is appealable, the provision of Order 43 of the CPC is always available. Placing reliance on sub-section 1 of Section 106 of the CPC it was argued that Section 104 and Order 43 of the CPC is to be read along with Section 106 of the CPC.
The Court discussing the scope of Section 104 read with Order 43 observed that Section 104 of the CPC restricts to those orders which are expressly provided in the body of this Code or by any law for the time being in force. When there is an express provision, then it is to be restricted to what is mentioned expressly in the Section and nothing can be borrowed as implied. It was further held that any other order, which is not included in Order 43 Rule 1 sub-rules (a) to (w) is not appealable under Section 104 of the CPC. Thus, the list is exhaustive and not enumerative. It does not leave scope to a party to file an appeal under Section 104 and Order 43 of the CPC challenging any order except Rule 1 (a) to 1 (w). The Court was of the opinion that if the legislature intended that the order of interim injunction passed in First Appeal is appealable under Section 104 and Order 43 of the CPC, then it would have been specifically mentioned in the list under Rule 1 of Order 43 of the CPC.
However, Court also stated that the avenue under Order 43 of the CPC is not open not because of the bar of Section 104 (2) of the CPC, but such order is not listed in Rule 1 of Order 43 of the CPC. Undoubtedly, such orders are passed within the appellate jurisdiction which is a parent jurisdiction and, therefore, such orders are to be expressly and separately required to be mentioned in the list of Rule 1 of Order 43 of the CPC. The Court held that though appeal is a continuation of the suit under Rule 2 of Order 43, the Rules under Order 41 shall apply so far as may be to appeals from orders is mentioned. However, only four Rules in Order 41 of the CPC are appealable under Order 43 of the CPC and the orders passed under other rules are not at all appealable under Order 43 of the CPC. Hence, the present appeal was held to be not maintainable.