First Appeal From Order (FAO) in the Delhi High Court

Which orders can be appealed

There is no general right to appeal an interim order. Order XLIII Rule 1 lists the orders that are appealable. Those that arise most often in Delhi practice are:

• orders under Order XXXIX Rules 1, 2, 2A, 4 or 10: granting or refusing a temporary injunction, punishing disobedience of an injunction, and varying or discharging one;
• orders under Order XL Rule 1 appointing a receiver or refusing to;
• an order under Order VII Rule 10 returning a plaint to be presented in the proper court;
• an order under Order IX Rule 9 refusing to restore a suit dismissed for default, and an order under Order IX Rule 13 refusing to set aside an ex parte decree;
• an order of remand by an appellate court under Order XLI Rule 23 or 23A.

An order that is not on the list, such as one refusing to amend pleadings or to frame an additional issue, cannot be appealed. It may be challenged in revision under section 115, if the conditions of that section are met, or under Article 227. Under Order XLIII Rule 1A, a party who did not appeal an order can also question it in the appeal against the final decree.

Which court: the appeal follows the forum of the final appeal

An order is appealed to the court that would hear the appeal from the decree in the same suit. An injunction order of a Civil Judge in Delhi is therefore appealed to the District Judge; an injunction order of a District Judge or Additional District Judge, in a suit tried by them, comes to the Delhi High Court as an FAO.

Two variants are distinct. On the High Court's original side, an appeal against an order of a single judge goes to a Division Bench, registered as FAO(OS). In a commercial suit, an order appealable under Order XLIII goes to the Commercial Appellate Division under section 13 of the Commercial Courts Act, within 60 days; it is not an ordinary FAO.

Section 104(2) also provides that there is no further appeal from an order passed in an appeal under that section. The remedy after an FAO is decided is a Special Leave Petition to the Supreme Court, not a second appeal.

How the High Court reviews an injunction order

The leading authority is Wander Ltd. v. Antox India (1990). The Supreme Court held that an appeal against an interim injunction order is an appeal on principle. The appellate court will not reassess the material and reach a different conclusion merely because it would have exercised discretion differently. It will interfere only where the trial court exercised its discretion arbitrarily, capriciously or perversely, or ignored settled principles of law governing interim injunctions.

That shapes how an FAO should be argued. The question is not whether the appellant has a better case, but whether the trial court went wrong on the three-part test of a prima facie case, balance of convenience and irreparable injury: for example by ignoring a registered document, misreading the plaintiff's own admission, or failing to consider that damages would be an adequate remedy.

Limitation, interim relief and timing

Article 116 of the Limitation Act gives 90 days to appeal an order to the High Court. In injunction cases, waiting that long is usually a mistake. If the trial court has refused an injunction and the property is about to be sold, or granted one that has stopped a business, the appellant should file within days and apply for interim relief in the appeal itself.

The High Court can grant an interim order on the first date, stay the operation of the impugned order, or direct the trial court to decide the injunction application afresh within a fixed time. It often prefers the last course when the trial court did not deal with a material argument.

An ex parte injunction, granted before the defendant is heard, is a special case. Order XXXIX Rule 3A requires the trial court to decide the injunction application within 30 days of granting such an order. In A. Venkatasubbiah Naidu v. S. Chellappan (2000), the Supreme Court held that where the court fails to do so, the affected party may treat the ex parte order as one that can be appealed. The usual first step, though, is to apply to the trial court to vacate the order under Order XXXIX Rule 4.

Preparing an FAO

1. 1.Obtain the certified copy of the order and the pleadings, the injunction application, the reply and the documents filed with them.
2. 2.Confirm that the order falls within Order XLIII Rule 1, and that the High Court is the correct forum.
3. 3.Identify the error of principle: the finding that ignores evidence, the wrong legal test, or a material argument left undecided.
4. 4.Draft grounds that address the Wander v. Antox standard directly.
5. 5.File with an application for interim relief and seek an early listing.

We handle FAOs alongside our civil litigation and property disputes work, so the interim appeal and the trial proceed under one strategy.