(a) Civil Procedure Code (V of 1908)---
----O. XLIII, R. 1(r) & O.XXXIX R. 3---Specific Relief Act (I of 1877), Ss.12 & 54---Suit for specific performance along with application for injunction---Direction to defendants to file written statement---Appeal under O.XLIII, R.1(r), C.P.C. lay only against an order under Rr.1, 2, 4 & 10 of O.XXXIX, C.P.C---Mere direction of issuing notice to the defendants came under the provisions of O.XXXIX, R.3 C.P.C. which was not appealable under O.XLIII R.1(r), C.P.C.---Trial court neither refused to grant injunction nor granted any relief in favor of plaintiff but passed an order/direction for issuance of notice on injunction application---Appeal, in law, could not proceed further and was dismissed accordingly.
(b) Words and phrases---
----"Direction"---Meaning.
Black's Law Dictionary, Sixth Edition; Concise Oxford Dictionary and Words Web Dictionary ref.
(c) Words and phrases---
----"Order"---Meaning.
Black's Law Dictionary, Sixth Edition; Concise Oxford Dictionary, Words Web Dictionary ref.
Syed Tajammal Hussain Bukhari for Appellant.
Malik Javed Akhtar Wains for Respondents Nos.1 to 3 and 13 to 17.
Syed Qamar Nasik for Respondent No.19.
2017 C L C 857
[Lahore (Multan Bench)]
Before Ibad-ur-Rehman Lodhi, J
ALI ASSOCIATES through Managing Director----Appellant
Versus
NOOR HUSSAIN and 24 others----Respondents
F.A.O. No.31 of 2016, decided on 12th April, 2016.
ORDER
IBAD-UR-REHMAN LODHI, J.--- The learned trial court, seized of the proceedings of a suit for specific performance, filed by the present appellant, when was asked for grant a relief of injunction on an application filed under Order XXXIX Rules 1 and 2, C.P.C. read with Section 151, C.P.C., along with plaint, instead of granting or refusing such relief of injunction, considered it proper to issue notices to the respondents for filing of written reply to such application, by means of order dated 18.01.2016.
Such order has been challenged in the present appeal filed under the provisions of Order XLIII, Rule 1(r) C.P.C.
2. Learned counsel for the appellant was directed to argue as to the maintainability and availability of the present appeal.
3. Respondents Nos.1 to 3, 13 to 17 and 19 have entered their appearance through their learned counsel in response to notice issued under Order XLIII, Rule 3, C.P.C. before filing of this appeal.
All have been heard.
4. In view of provisions of Order XLIII, Rule 1(r), C.P.C., an appeal lies from an "order" under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX, C.P.C.
A "direction" to the defendants in the suit/respondents in the said application issued to file written reply to such application seeking injunction cannot be equated with an 'order' passed on application under Order XXXIX, Rules 1 and 2, C.P.C. It is merely a "direction" requiring the other side of the proceeding to file reply of the filed petition.
5. Learned counsel for the appellant, in support of his contentions, has contended that even such direction to appear and file reply would be considered as an 'order' within the meaning of Order XLIII, Rule 1(r), C.P.C., enabling the aggrieved person to file an appeal under the above provision of law. He has placed his reliance on case laws titled (Messrs.) The Associated Cement Companies Ltd. (a Corporation registered in India under the Companies Act, carrying on the trade and business in Pakistan and having its Head Office in A.C.C. Building at 1, Queens Road, Bombay, India) v. The Province of Punjab, (PLD 1954 Lahore 151) and Piran Ditta v. Haji Habib Ashraf etc. (PLD 1982 Lah. 234).
In both of the reported judgments, an order refusing to issue an interim injunction pending decision on application for temporary injunction or granting such injunction keeping the application for temporary injunction pending, are held as appealable within the meaning of Order XLIII Rule 1(r) C.P.C.
6. In order to differentiate the terms 'direction' and `order', we have to consult the dictionary meaning of both such terms.
The term "direction" has been defined inter alia in the following manner in the below referred dictionaries:-
Black's Law Dictionary, Sixth Edition.
`a guiding or authoritative instruction; the line or course upon which anything is moving or aimed to move.'
Concise Oxford English Dictionary.
`the action of directing or managing.'
Wordweb Dictionary.
`helpful suggestions regarding a decision or future course of action, the act of setting and holding a course, a message describing how something is to be done.'
Whereas, the term "order" has been defined in the following dictionaries as follows:--
Black's Law Dictionary, Sixth Edition.
`a mandate, command or direction authoritatively given.'
Concise Oxford English Dictionary.
`an authoritative command or direction.'
Wordweb Dictionary.
`a legally binding command or decision entered on the court record, give instructions to or direct somebody to do something with authority.'
Hence, asking a defendant or respondent in a proceeding to appear and file reply can in no way be termed as an "order", but it is a "direction", as such, the remedy of appeal provided from an order in view of Order XLIII, Rule l(r), C.P.C. would not be available to the present appellants, on whose application moved under Order XXXIX, Rules 1 and 2, C.P.C., instead of passing any order, the learned trial court directed the respondents/defendants in the suit to appear and file reply thereto.
7. Keeping in view the above discussion, it is apparent that an appeal under Order XLIII, Rule 1(r), C.P.C. lies only against an order under rule 1, rule 2, rule 4 and rule 10 of Order XXXIX, C.P.C. The mere direction of issuing notice to the respondents on an application for grant of an injunction clearly comes under the provisions of Order XXXIX, Rule 3 C.P.C., which is not appealable under Order XLIII, Rule 1(r), C.P.C. It is, therefore, clear that whenever a court passes an order/direction for issuance of notice on an injunction application, the same is not appealable under Order XLIII, Rule l(r), C.P.C.
8. Perusal of impugned order dated 18.01.2016 clearly reveals that the learned trial court neither refused to grant injunction nor granted any relief in favour of the appellants, thus, the appellant by misinterpreting the enabling provisions of law has filed this incompetent appeal. The same is not further proceed-able and is dismissed.
WA/A-74/L Appeal dismissed.
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