- (1.) With the consent of Shri Sudipta Moitra the Ld. Advocate appearing for the petitioner the instant revisional application had been heard on a preliminary objection taken by the Ld. Advocate Mr. Gopal Chandra Mukherjee appearing for the O.P. against the impugned order that no revisional application lies under Section 115 of the Code of Civil Procedure and that as such only appeal lies. The revisional application has not been heard on merits. So the main point for consideration is whether the impugned order is an appealable order or it is revisable under Section 115 C.P.C.
(2.) The instant revisional application has been preferred against Order No. 1 dated 21-12-1992 passed by the Ld. District Judge, Howrah rejecting the prayer for ad interim order of injunction in Misc. Appeal No. 287/92 preferred by the plaintiff petitioner against the Order No. 45, dated 17-12-1992 passed by the Ld. Munsif, 4th Court, Howrah in T.S. 62/90 rejecting his prayer for ad interim order of injunction. It would be helpful to note that in the Trial Court the petition filed by the plaintiff petitioner for temporary injunction under Order 39, Rules 1 and 2 of the C.P.C. in the aforesaid T.S. 62/90 is still pending. So pending is the Misc. Appeal preferred against the said order in the Court of the Ld. District Judge, Howrah along with the application for temporary injunction. In the said Misc. Appeal the plaintiff petitioner filed a petition under Order 39, Rules 1 and 2 read with Section 151 C.P.C. for an order of interim injunction which was refused by the Ld. District Judge by his impugned order and the Ld. District Judge issued only notice upon the respondent O.P. to show cause.
(3.) The Ld. Advocate appearing for the O. P. has submitted that the impugned order is an appealable order and no revision lies against the same. In support of his contention Shri Mukerjee has referred to a Single Bench decision of this High Court reported in 1988 (1) C.L.J. at page 389. It has been held in the said decision that Section 104(2) C.P.C. bars only second appeal and not a first appeal under Section 104(1) C.P.C. read with Order 43, Rule 1 C.P.C. against orders mentioned therein and passed either by the Trial Court or by the Court of appeal in exercise of powers under Section 107(2) C.P.C. It has been further held there that when Appellate Court passes an order which is in the nature of original order that order is an appellable one. It can be appealed against in the High Court. It would be helpful to quote the relevant passages from the reported judgment delivered by Mr. Samir Kumar Mukherjee, J. as follows :- "Order passed under Rules 1 and 2 or rule 4 of Order 39 of the Code are subject to an appeal in terms of Order 43, Rule 1(r) read with the provisions of Section 104 Sub-Section (1) clause (i). Then follows Sub-Section (2) which provides that 'No appeal shall lie from any order passed in appeal under this Section the connected Miscellaneous Appeal, which is pending before the lower Appellate Court, is undoubtedly an appeal under the provisions of Section 104(1) of the Code of Civil Procedure, read with Order 43, rule 1 or vice versa. Such an appeal would obviously be barred if the view taken in the decision cited by Mr. Dey be accepted. I am, however, unable to accept the said decision as correct in view of the unreported Bench decision of this Court in F.M.A.T. No. 28 of 1976 (2) Mrs. Anjali Sengupta v. A. K. Das, decided by H. N. Sen and B. C. Ray, JJ. on 30-3-1976. That decision clearly holds that an order passed by the lower Appellate Court under Order 39 of the Code is appeallable. It is true that in the said Bench decision there is no reference to Section 104(2) of the Code of Civil Procedure but even then, sitting singly I am bound by the said decision and if I had felt inclined to differ from it, the only course open to me would have been to refer the matter to a Division Bench for examining the propriety and correctness of the said decision. I feel, however, that the said decision is correct on principle notwithstanding non-mention of Section 104(2) of the Code which in my view, bars only a Second Appeal an not a First Appeal under Section 104(1) read with Order 43, Rule 1 of the Code against the orders mentioned therein and passed either by the trial court or by the court of appeal in the exercise of its powers under Section 107(2) of the Code, which expressly provides for the exercise by the Appeal Court of powers conferred on courts of Original Jurisdiction. Exercise of such powers by the Appellate Court would result in original order as distinguished from appellate orders which postulate the existence of original orders passed by a subordinate court and the bar of Section 104(1) applies only to appeals against such appellate order. That bar was never intended to apply to original orders whether passed by the trial court or by the Appellate Court in the exercise of powers under Section 107(2) of the Code of Civil Procedure on the matters mentioned or included in Order 43, Rule 1 and expressly made appealable under that provision read with Section 104(1) as in that event, a conflict would immediately arise between the two Sub-Sections (Sub-Sections (1) and (2)) of Section 104 and in construing Section 104(2) this aspect should not be overlooked." The Ld. Advocate of the O.P. has also referred to a decision of this High Court reported in I.L.R. 26 Cal 275 and of the Allahabad High Court reported in I.L.R. 25 at page 174. Both these cases have been discussed in the judgment reported in 1988 (1) C.L.J 389. The Ld. Advocate Mr. Moitra appearing for the petitioner has contended that this reported decision in a judgement per incuriam and that as such should not be taken note of. He has referred to a decision of the Supreme Court reported in (1975) 2 SCC 239 : (AIR 1975 SC 907). In the said case the Supreme Court has held as follows :- "Certainty of the law, consistency of rulings and comity of courts - all flowering from the same principle - converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obstrusive omission." He has also referred to a recent decision of the Supreme Court reported in (1988) 2 Supreme Court Cases 602 : (AIR 1988 SC 1531). In the said case the Supreme Court has identified the decisions which are per incuriam. Supreme Court has held that "per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong." The Supreme Court has firmly and tersely held that it is the settled rule that if the decision has been given per incuriam the court can ignore it.;