Appeal under Order XLIII Rule 1(r) CPC is not maintainable against an order issuing notice without granting or refusing injunction.

The appellants (plaintiffs) filed suits for declaration and permanent injunction regarding certain properties. Along with the plaints, they moved applications (I.A. Nos. 1 and 2) under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (CPC) seeking ad-interim ex-parte temporary injunctions to restrain the defendants from alienating the property and from carrying out further construction

The Trial Court (XXX Addl. City Civil Judge, Bengaluru), upon perusing the documents, observed that appropriate orders could only be passed after hearing both parties and consequently issued notice on the I.As and suit summons

The plaintiffs challenged these orders via Miscellaneous First Appeals (MFA), contending that the Trial Court failed to exercise its jurisdiction to grant ex-parte relief and acted arbitrarily

1. Whether the present appeals are maintainable under Order XLIII Rule 1(r) of the CPC against a Trial Court order that merely issues notice on an injunction application without expressly granting or rejecting the prayer for ad-interim relief?

Section 104 and Order XLIII Rule 1(r) of the CPC, which restrict the right of appeal only to specific orders passed under Rules 1, 2, 2A, 4, or 10 of Order XXXIX

distinction between Rule 1/Rule 2 (grant/refusal of injunction) and Rule 3 of Order XXXIX (procedure for directing notice before granting injunction)

A. Venkatasubbaiah Naidu v. S. Challappan, which establishes that while an appeal lies against an ex-parte order remaining in force beyond 30 days, the normal remedy under Order XLIII Rule 1 does not extend to mere procedural directions

Rule 3 is consciously excluded from the list of appealable orders to prevent challenges to innocuous notices [Perpetual Vision LLP v. Vaibhav S. Pingale]

The Court reasoned that under Order XXXIX, a Trial Judge has two distinct options upon receiving an injunction application: (i) issue notice under Rule 3 to hear the opponent, or (ii) grant an ex-parte ad-interim injunction under the proviso to Rule 3 if delay would defeat the object of the injunction

The Court observed that Order XLIII Rule 1(r) specifically enumerates the rules under which an order is appealable and "conspicuously" omits Rule 3

Therefore, an order that neither grants nor rejects an injunction but simply defers the decision until the defendants are heard is an exercise of discretion under Rule 3, which is not amenable to the appellate jurisdiction of the High Court

The Court noted that the "species" of order issuing notice is distinct from the "genus" of orders granting or refusing injunctions under Rules 1 and 2

The appeals were dismissed; however, the Court reserved liberty for the appellants to move the Trial Court for an early hearing, directing the Trial Judge to consider such a motion and pass suitable orders within 15 days of the request

The Court clarified that it expressed no opinion on the merits of the underlying injunction applications