Rajiv Sharma, J. - (1.) Cynosure of attention is the order dated 14.10.2004 passed by the Incharge District Judge, Gonda in Misc. Civil Appeal No. 73 of 2004, Balrampur Chini Mills Limited v. Naseem and Ors., the correctness of which has been challenged in the instant writ petition.
(2.) The suit for permanent injunction was instituted by the opposite party No. 3 along with an application under Order XXXIX, Rules 1 and 2, C.P.C. for grant of ex parte injunction. The trial court having not been satisfied on the material did not pass an ex parte temporary injunction, but directed to issue notice to the defendants-petitioners.
(3.) The plaintiffs-opposite parties aggrieved by an order to issue notice, preferred an appeal under Order XLIII, Rule 1 (r), C.P.C. The appellate court, after hearing the parties decided the application under Order XXXIX, Rules 1 and 2, C.P.C. granting temporary injunction vide impugned order dated 14.10.2004. Being aggrieved by the aforesaid order dated 14.10.2004, respondents-petitioners preferred the present writ petition attacking the order on two counts, viz. : Firstly, an appeal before the lower appellate court was not maintainable as the order under appeal was not an order of refusal or grant of temporary injunction, but was one under Order XXXIX, Rule 3, C.P.C, which was not appealable; and Secondly, even if the lower appellate court was of the opinion that the appeal was maintainable, it could not have finally granted the temporary injunction till the decision of the suit, as it would amount to hold up the proceedings pursuant to the reply to show cause notice, therefore, the appellate court ought to have remitted the case to trial court for passing order on the application under Order XXXIX, Rules 1 and 2, C.P.C.;