Maintainability of Appeals Against Notice Orders in Injunction Applications

Facts

Perpetual Vision LLP and another party filed a commercial suit before the District Judge (Commercial Court)-01, Saket. Along with the suit, they filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure (CPC) seeking temporary injunction and requested that the injunction be granted immediately without notice to the defendants (ex parte ad-interim injunction).

The Commercial Court on 03.11.2025 did not grant an ex parte injunction immediately. Instead, it issued summons of the suit and notice of the injunction application to the defendants for appearance and reply. The Court directed that the suit is commercial in nature and required the defendants to file written statement with statement of truth and affidavit of admission and denial within the mandatory 30-day period from the date of service.

Feeling dissatisfied because ex parte relief was not granted immediately, Perpetual Vision LLP preferred an appeal before the Delhi High Court under Section 13 of the Commercial Courts Act, 2015 claiming that the refusal of urgent injunction amounted to rejection under Order 39 Rule 1 CPC and was therefore appealable.

Procedural Detail

The appeal was filed under Section 13 of the Commercial Courts Act, 2015, which permits appeals only against orders specifically enumerated under:

• Section 37 of the Arbitration and Conciliation Act, 1996
• Order XLIII Rule 1 CPC

Since the case had nothing to do with arbitration, the appellants argued that the impugned order was appealable under Order XLIII Rule 1(r) CPC, which permits an appeal only against orders passed under:

• Order 39 Rules 1, 2, 2A, 4 or 10 CPC

The appellants relied heavily on A. Venkatasubbiah Naidu v. S. Chellappan (2000) 7 SCC 695, arguing that “refusal to grant ex parte injunction” should be treated as rejection under Order 39 Rule 1.

Core Dispute

The central legal question before the High Court was:

Whether an order merely issuing notice on an application for interim injunction and not granting ex parte relief amounts to an order appealable under Order XLIII Rule 1(r) CPC and therefore maintainable under Section 13 of the Commercial Courts Act?

If the answer were yes, the appeal would proceed; if not, the appeal had to be dismissed outright.

Detailed Judicial Reasoning

The High Court undertook a detailed analysis of the CPC structure. The Court examined:

• Order 39 Rule 1 CPC (grant of temporary injunction)
• Order 39 Rule 3 CPC (requirement of issuing notice before granting injunction)
• Order XLIII Rule 1 CPC (appealable orders)

The Court clarified that although the final decision on granting temporary injunction falls under Order 39 Rule 1, the procedural step of deciding whether notice should be issued or ex parte action should be taken is governed exclusively under Order 39 Rule 3 CPC.

Order 39 Rule 3 makes issuance of notice before granting injunction the norm, while passing ex parte injunction without notice is the exception and requires reasons recorded in writing.

Therefore, a judicial act of simply issuing notice on an injunction application is an exercise of power under Order 39 Rule 3 and not Order 39 Rule 1.

Because Order 39 Rule 3 does not appear in the list of appealable orders under Order XLIII Rule 1(r), an appeal cannot be maintained in such a situation.

The Court relied on its earlier binding Division Bench judgments:

• Sahil Singh Maniktala v. Harpreet Singh, 118 (2005) DLT 350 (DB)
• Nisha Raj v. Pratap K. Kaula, 57 (1995) DLT 490 (DB)

Both judgments hold that issuance of notice on an injunction application is not appealable because it does not decide or adjudicate rights. Only in extremely rare situations where restitution is absolutely impossible (e.g., deportation, execution of death sentence, irreversible export of goods, etc.) may an order of issuing notice be appealable. The present case did not fall under these rare categories.

The Court also examined the appellant’s argument that the order recorded “submissions heard” and therefore should be appealable. The Court categorically rejected this, clarifying that hearing submissions before issuing notice does not convert the procedural step into an adjudication of rights.

Ultimately, the High Court held that the Commercial Court order neither granted nor denied injunction; rather, it only directed that the other party be heard. Therefore, the order was purely procedural and not appealable.

Decision

The High Court held that the appeal was not maintainable under Section 13 of the Commercial Courts Act because the impugned order is not covered under Order XLIII Rule 1(r) CPC.

The appeal was dismissed without entering into merits since the order was only issuance of notice on the injunction application — a step expressly empowered under Order 39 Rule 3 CPC, which the Legislature has deliberately excluded from the list of appealable orders.

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Written By

Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi