The appeal before the learned District Judge was one under Order 43, Rule 1 (r), C. P. C. and not a regular appeal. Jurisdiction of the appellate Court while deciding appeal of such a character extends only to examine the validity of an order enumerated in Clause (r) of Order 43, Rule 1, C. P. C., which runs as under :
"An appeal shall lie from the following orders under the provisions of Section 104, namely :--
(r) an order under Rule 1, Rule 2, (Rule 2-A), Rule 4 or Rule 10 of Order XXXIX."
Accordingly, the scope of such appeal is limited. It extends to adjudication of challenge to an order of grant or refusal of interim injunction as envisaged by Order 43, Rule 1 (r), C. P. C. As such, the learned District Judge has no seisin over the suit as such. He was seized of proceedings for issuance of a temporary injunction in the suit and not of the suit itself. This aspect of the law appears to have been overlooked by the learned District Judge.
As a logical corollary flowing from the aforesaid position of law, it has to be concluded that the learned District Judge had no jurisdiction to entertain the application for amendment of the plaint submitted before him by the plaintiff-applicant herein. If the applicant herein (plaintiff) chose to submit the application in the appeal preferred by the defendants before the learned District Judge, only courses which would have been adopted by the learned District Judge were (a) to direct the plaintiff to submit the amendment application before the trial Court; and (b) to forward it to the trial Court for decision in accordance with law after deciding the appeal on merits. However, he had no jurisdiction to decide the application for amendment of the plaint on its merits.
In spite of this, the scope of the appeal under Order 43, Rule 1 (r) is restricted as discussed above to examine the propriety and/or legality of order passed under the various rules of Order 39 referred therein. A distinction has to be made between the scope of regular appeal and a miscellaneous appeal under the aforesaid provision. While deciding the appeal of former character the appellate Court has, on the theory that appeal is continuation of suit, power to allow amendment in the pleadings, but in an appeal of the later type the appellate Court has jurisdiction only to adjudicate upon the correctness or otherwise of order refusing or granting an interim injunction. The position of trial Court in such a situation appears to be different, as the trial Court is in seisin of the suit as well as of application for issuance of a temporary injunction made in the suit. The powers exercisable by an appellate Court while hearing appeals preferred under Order 43, Rule 1 (r) cannot be regarded to extend to allowing amendment of the plaint, as he is not in seisin of the suit as such.
In the present situation, the word 'proceeding' connotes merely an application for issuance of a temporary injunction and/or its reply. Accordingly, where the plaintiff-applicant moves an application for amendment of the application for issuance of temporary injunction, the appellate Court may be regarded to have jurisdiction to decide it.
IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)
Civil Revn. No. 272 of 1979
Decided On: 25.02.1981
Dhundasingh Vs. Leeladhar and Ors.
Hon'ble Judges/Coram:
H.G. Mishra, J.
Citation: 1982 AIR MP 14,1981 SCC ONLINE MP, MANU/MP/0005/1982
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