Law: Civil Procedure Code (V of 1908)

Section: O.XXXIX,r.4,O.XLIII,r.1(r)

Civil Procedure Code (V of 1908)----- ----O. XXXIX, r. 4, read with O. XLIII, r. 1 (r)-Injunction-Appeal-Dismissal of defendant's application, against injunction under O. XXXIX, r. 4-Appeal not competent from such dismissal but only from original order granting injunction. Held, that Order XXXIX, rule 4 of the Code of Civil Procedure contemplates a discharge, variation or setting aside of an injunction already issued and the remedy by appeal under Order XLIII, rule 1 (r) of the Code of Civil Procedure cannot be availed of by a defendant if his application under Order XXXIX, rule 4 has been dismissed. In cases where injunction was issued whether without or after hearing the party against which it was issued, two reme­dies are open to the aggrieved party, one being an application under Order XXXIX, rule 4 of the Code and the other an appeal under Order XLIII, rule 1 (r) of that Code. If the application under Order XXXIX, rule 4 of the Code by a defendant who was heard before the issue of injunction is dismissed, he cannot, if his appeal against the original order is barred by limitation, be allowed to attack the original order by an appeal under Order XLIII, r. 1 (r) by seeking to appeal against the order of dismissal of his application under Order XXXIX, rule 4 because he would thereby be circumvent­ing the law of limitation. Legislature could not have intended that a party which had not availed of the remedy provided by Order XLIII, rule 1 (r) of the Code of Civil Procedure within the time prescribed by the Law of Limitation by appeal­ing against the original order could set the Law of Limitation at naught by the simple device of putting in a futile application under Order XXXIX, rule 4 and on its dismissal by seeking to appeal against the order of dismissal of that application. Govinda Ramonuja v. Vijiaramaraju A I R 1929 Mad. 803 ref. North-Western Railway Administration v. North-Western Railway Union A I R 1933 Lah. 203 distinguished. JUDGMENT SHABIR AHMAD, J.--------Lever Brothers Limited brought a suit against Insaf Soap Factory, Sargodha, under sections 20 and 21 of the Trade Marks Act, 1940, and applied for an interim injunction for restraining the…

Deprecated: trim(): Passing null to parameter #1 ($string) of type string is deprecated in /home/digixyei/sldsystempk.com/view/master-layout/view_case.php on line 492