- (1.) A. K. Banerji, J. By means of the present writ petition the petitioner has prayed for quashing of the impugned order dated 18-4-1995 (Annexure-12) passed by the respondent No, 1 and the impugned order dated 20-4- 1995 (Annexure-13) passed by the respondent No. 2. He has also prayed for a writ of mandamus commanding the respondents not to interfere with working of the petitioner as the Principal of the institution in question.
(2.) BRIEF facts, as set out in the petition, are that the petitioner was appointed on the post of Principal of the institution known as Aligarh Public School, Aligarh, which is imparting education from Nursery to class X. The society which runs the institution as known as Sir Syed Education Development Society, Aligarh, which is registered under the Societies Regis tration Act. According to the petitioner, the defendant-respondents suddenly, due to mala fide reasons, wanted to terminate the cervices of the petitioner and started interfering with his functioning as the Principal. Consequently, the petitioner had no alternative but to file Suit No, 122 of 1995 in the Court of Munsif, Koil, Aligarh, for permanent injunction against the defendant-respondents restraining them from terminating the services of the peti tioner or from interfering with his functioning as the Principal. The Suit was filed on 1-4-1995 and along with the plaint the petitioner also filed an application under Order XXXIX Rules 1 and 2 read with Section 151, C. P. C. praying for temporary injunction during the pendency of the suit. The trial court issued notice to the defendants and also passed an ad interim injunction order restraining the defendants from interfering with the functioning of the plaintiff-petitioner as the Principal of the institution till 10-4-1995. Oa 15-4-1995 the operation of the interim injunction order was extended till 17-4-1995 which was the date fixed for hearing the objections of the defendants. On 17-4-1993 the interim injunction order was again extended till 18-4-1995. In the meantime on 4-4-1995 the defendant- respondents 4 and 5 preferred a Misc. Appeal before the District Judge, Aligarh against the ex pane interim injunction dated 1-4-1995 granted by the trial court (respondent No. 3 ). Along with the memo of appeal an application for staying the operation of the interim injunction order dated 1-4-1995 was also Sled. The appearance was put in on behalf of the petitioner in the aforesaid appeal on 10-4-1995 and a preliminary objection was raised regarding the maintainability of the appeal. The preliminary objection was heard by the District Judge (respondent No. 1) on 17-4-1995 and by order dated 18-4-1995, which is also impugned in the present petition, it was held that the appeal was maintainable. Consequently, the appeal was admitted and transferred to the court of respondent No. 2 for hearing and disposal. The parties were directed to appear before the said court on 19-4-1995 and in the meanwhile the operation of the ex parte interim injunction order dated 1-4-1995 was stayed. The matter was heard by the respondent No. 2 who vide the impugned order dated 20-4-1995 allowed the appeal filed by the defendant respondents No. 4 and 5 and set aside the ex parte ad interim injunction order dated 1-4- 1995 passed by the respondent No. 3. Feeling aggrieved, the present writ petition has been filed. The defendant-respondents had filed a caveat through Shri S. U. Khan, Advocate. Counter and rejoiner affidavits have been exchanged between the parties and with the consent of learned counsel for the parties the writ petition is being finally disposed of at the admission stage. Dr. R. G. Padia, learned counsel for the petitioner has challenged the impugned orders dated 18 4- 1995 and 20-4-1995 passed by the respondents No, 1 and 2 respectively on three grounds. Firstly, it has been strenuously contended that the appeal filed by the respondents No. 4 and 5 was not legally maintainable and order dated 18-4-1995 passed by the District Judge holding the appeal to be maintainable and admitting the same was mani festly illegal and unsustainable. It has been contended that against the order of the trial court granting ex parte ad interim injunction the defendants could either apply for getting the said order vacated and if unsuccessful file a miscellaneous appeal against the said order or in the alternative file a miscellaneous appeal straightway before the appellate court under Order XLIII, Rule 1 (r), C. P. C. but they could not invoke both these remedies simultaneously. In support of this submission learned counsel has placed strong reliance upon the Full Bench decision of this Court in the case of Zila Parishad v. B. R. Sharma, reported in AIR 1970 All 376. He has also relied upon the decision of a learned Single Judge of this Court in the case of Mumtaz Khan v. 1st Additional District Judge, Bahraich, reported in 1993 (2) ARC 99.
(3.) I have considered the contention of the learned counsel for the petitioner and have also carefully perused the aforesaid decisions cited by him. In the case of Zila Parishad (supra), (FB) the question which was referred for the decision was to the effect whether an ex parte order issuing injunction against the defendant was appealable in the facts of the referred cases. The main controversy, therefore, before the Full Bench was whether a miscellaneous appeal under Order XLIII, Rule 1 (r) lay against an ex parte ad interim injunction 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 issuing temporary injunction it was open to the defendants to file an appeal straightway under Order XLIII, Rule 1 (r), C. P. C. While considering the argument in the said case the following observations were made in paragraph 16 of the judgment: "16. The language and the object of Rule 1 (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 issued and the party affected thereby is apprised of it has two remedies ; (1) he can either get the ex parte injunction order discharged or varied or set aside under Rule 4 of Order XXXIX, and if unsuccessful avail the right of appeal as provided for under Order XLIII, Rule 1 (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 alternative 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 pane decree or he may seek to get the ex parte decree set aside by the same court. " Learned counsel for the petitioner has placed strong reliance upon the aforesaid observation made by the Full Bench which has also been followed by a learned Single Judge in the case of Mumtaz Khan (supra) He has further contended that in the present case the defendant-respondents and 5 had filed appeal against the ex pars injunction order dated 1-4-1995 and had also filed objection against the application for temporary injunction. Therefore in view of the observations of the Full Bench, it has been contended that the appeal would not be maintainable and ought to have been dismissed by the District Judge (respondent No. 1) instead of admitting the same. Having heard learned counsel for the patties, I am unable to agree with the submissions made by learned counsel for the petitioner. From the facts of the case presented before me it would be evident that the ex parte ad interim injunction order was passed by the trial court on 1-4-1995. The defendant- respondents 4 and 5 preferred miscellaneous appeal before the District Judge on 4-4-1995 as is evident from the copy of the memo of appeal filed alongwith the counter-affidavit. It appears that an amend ment application was filed subsequently which was ordered to be put up on 10-4-1995 and after hearing learned counsel for the parties on 17-4-1995 the impugned order dated 18-4-1995 was passed by the respondent No. 1 holding that the appeal was maintainable. The objections praying for not extending the ex parte ad interim injunction order annexing various documents as annexures were filed before the trial court in the Suit on 10-4-1995, a few days after filing of the miscellaneous appeal. It is evident, therefore, that the miscellaneous appeal and the objections for not extending the exports injunction order were not filed simultaneously, At the time when the appeal was filed the objections were not in existence. Therefore, the defendant-respondents had adopted the second course as laid down in the Full Bench decision and had straightway filed appeal under Order XLIII, Rule 1 (r) against the ex parte injunction order. The appeal consequently was maintainable on the date when it was filed. The record of the case reveals that on 10-4-1995 the defendants had only filed objections stating that in view of the facts of the case ex parts ad interim injunction order dated 1-4-1995 could not be extended any further. The said objections had not been heard or decided till the disposal of the appeal and there is nothing to show that the defendants ware pursuing their remedies simultaneously before the trial court as wall as before the appellate court. That apart, I do not agree with the submission made by the learned counsel that the Full Bench decision in the case of Zila Parishad (supra), excludes an appeal in case an application for vacating the ad interim injunction order had been filed. Before the Full Bench this point was neither involved nor did the Full Bench express any such view in para 16 of the judgment quoted above. It is noteworthy that a similar argument like in the present case was advanced before this Court in the case of Indradeo Singh v. District Judge, Gorakhpur, reported in 1993 (2) ARC 357, and the same was reppelled. It was held that there is no such condition under Order XLIII, Rule 1 (r), C. P. C. that if an application has been moved under Rule 4 of Order XXXIX, C. P. C. for vacating an ex parte injunction order and the said application has not been disposed of, the appeal would not be maintain able. Further, in the absence of any specific provision in the Rules, it will not be proper to restrict the right of appeal conferred by the statute by holding that the appeal would not be maintainable if the application to vacate the ex parte order is still pending. I respectfully agree with the aforesaid view.;