B.AMIT STHALEKAR, J. - (1.) THIS writ petition has been filed for a direction to reject the plaint of the original suit No. 1529 of 2012 (M/s. Uflex Limited v. Jawala Engineering Private Limited and others), and further to set aside the impugned ex-parte stay order granted by the Civil Judge (Senior Division) dated 23.11.2012 in the said suit. Sri M.K. Gupta and Sri Samit Gopal have filed their appearance today on behalf of the respondent and have raised a preliminary objection that this writ petition is not maintainable in view of the provisions of Order XLIII, Rule 1(r) C.P.C.
(2.) SRI Sunil Kumar, learned Coun- sel for the petitioner has raised a objec- tion that appeal under Order XLIII, Rule l(r) is not maintainable. Replying to this objection Sri M.K. Gupta has placed a reliance on a Full Bench decision of this Court in Zila Parishad Budaun and others v. Brhma Rishi Sharma.1 The relevant portion of the Full Bench is contained in paras 16 and 18 of the judgment which reads as follows:- "16. The language and the object of Rule l(r) of Order XLIII, and the scheme of Rules 1 to 4 of Order XXXIX show that an appeal also lies against the ex-parte order of injunc- tion. As soon as an interim injunction is issued and the party affected thereby is apprised of it, he has two remedies: (1) he can either get the ex parte injunction order discharged or varied or set aside appeal as pro- vided for under Order XLIII, Rule l(r), or (2) straightway file an appeal under Order XLIII, Rule 1 (r) against the injunction order passed under Rules 1 and 2 of Order XXXIX, C.P.C. It is not unusual to provide for alter- native remedies. For instance, when an ex parte decree is passed against a person, he has two remedies: either he may go up in appeal against the ex parte decree or he may seek to get the ex parte decree set aside by the same Court. 17..................................... 18. We are unable to accept this submission of the learned Counsel for the respondents. As already dis- cussed above, once the Court, after perusing the application and affida- vit, comes to the conclusion that the case is a fit one in which temporary injunction should be issued ex parte the Court takes a final decision in the matter for the time being and the ex- pression of this decision in our opin- ion is a final order for the duration it is passed. Such an order is contem- plated by Rules 1 and 2 of Order XXXIX, C.P.C. We have looked into 1. AIR 1970 Alld 376. the authorities referred to above, but they are not applicable to the facts of this case and they have little bearing on the precise point raised by the learned Counsel for the respon- dents."
(3.) SUBSEQUENTLY the above Full Bench decision has been followed by this Court in the case in Mohd. Raft Khan (Dr.) v. District Judge, Aligarh.2 The rele- vant paragraph is para-5 which reads as follows:- "5. I have considered the conten- tion of the learned Counsel for the petitioner and have also carefully pe- rused the aforesaid decisions cited by him. In the case of Zila Parishad (Supra), (F.B.) the question which was referred for the decision was to the effect whether an ex-parte order issuing injunction against the defen- dant was appealble in the Full Bench was whether a miscellaneous appeal under Order XLIII, Rule 1 (r) lay against an ex-parte ad-interim injunc- tion order or only against the final order passed by the Trial Court after hearing the defendants. It was held that even against an ex-parte order is- suing temporary injunction it was open to the defendants to file an ap- peal straightway under Order XLIII, Rule 1 (r) C.P.C. While considering the argument in the said case the fol- lowing observations were made in paragraph 16 of the judgement:- "16. The language and the object of Rule l(r) of Order XLIII, and the scheme of Rules 1 to 4 of Order XXXIX show that an appeal also lies against the ex parte order of injunction. As soon as an interim injunction is is- sued and the party affected thereby is apprised of it, he has two reme- dies: (1) he can either get the ex parte injunction order discharged or var- ied or set aside under Rule 4 of Or- der XXXIX and if unsuccessful avail the right of appeal as provided for under Order XLIII, Rule' l(r), or (2) straightway file an appeal under Or- 2. 1996 (27) ALR 149. der XLIII, Rule 1 (r) against the in- junction order passed under Rules 1 and 2 of Order XXXIX, C.P.C. It is not unusual to provide for alternative remedies. For instance, when an ex parte decree is passed against a per- son, he has two remedies: either he may go up in appeal against the ex parte decree or he may seek to get the ex parte decree set aside by the same Court. ;