An Order XXXIX Rule 3 notice is not appealable unless the injunction application is decided.

The plaintiffs filed a partition suit and sought temporary injunctions under Order XXXIX Rules 1 and 2 CPC, including an order restraining certain defendants from alienating the suit properties and changing their physical features.

On the first hearing, the trial court recorded that no grounds were made out for an ex parte temporary injunction and ordered suit summons and notice on the applications.

The plaintiffs appealed under Order XLIII Rule 1(r) CPC, contending that the trial court had effectively rejected their requests.

The defendants argued that the applications remained pending and that the order was only one issuing notice under Order XXXIX Rule 3 CPC.

1. Whether an appeal under Order XLIII Rule 1(r) CPC is maintainable where the trial court has issued suit summons and notice on temporary-injunction applications without allowing or rejecting them?

Order XXXIX Rules 1 and 2 CPC govern applications for temporary injunctions;

Order XXXIX Rule 3 CPC provides for notice to the opposite party in connection with such applications.

Under Order XLIII Rule 1(r) CPC, an appeal lies from specified orders under Order XXXIX, but not from an order merely issuing notice under Rule 3.

The court also relied on Sri Suresh Babu J.N. v. Sri Jaganmohan and Others, MFA No. 3477 of 2026, decided 30 June 2026, which held that an appeal is not maintainable unless the trial court passes an order expressly granting or rejecting the application.

The trial court had neither granted an ex parte injunction nor rejected the applications; they remained pending for consideration, with notice issued to the defendants.

The High Court treated the order as one under Order XXXIX Rule 3 CPC, rather than a decision on the merits under Rules 1 and 2.

Since Rule 3 orders are not included among the appealable orders under Order XLIII Rule 1(r), the plaintiffs’ appeal was not maintainable.

It reserved liberty for the plaintiffs to seek appropriate orders on the pending applications before the trial court and directed that, if such applications were made, the trial court consider and dispose of them within fifteen days of receiving a copy of the High Court’s order.