Defendant is the petitioner in this revision petition against the concurrent orders passed by the courts below, namely, in I.A.No.1093 of 1991 by the trial court and in C.M.A.No.43 of 1991 by the lower appellate court. The said l.A.No.1093 of 1991 was filed by the respondents/ plaintiffs for grant of injunction under O.39, Rule 1 pending disposal of their suit O.S.No.394 of 1991 on the file of the District Munsif Court, Tenkasi. On 6.9.1991 the impugned order as was passed as follows:

Aggrieved by the said order of the petitioner defendant preferred the abovesaid C.M.A.No.43 of 1991. There the lower appellate court held that the said appeal would not lie at all since defendant should have resorted to 0.39, Rule 4 by filing a petition to vacate the abovesaid injunction order granted on 6.9.1991 and he could not file an appeal. For holding so, the lower appellate court relied on Abdul Shukeer Sahib v. Umachander and another, 1976 T.L.N.J. 159. Therefore, the lower appellate court dismissed the C.M.A., and hence the present civil revision petition is filed by the petitioner.

2. Learned counsel for the petitioner initially submits that the abovesaid order dated 6.9.1991 is not anex parte order at all since in the impugned order itself it is mentioned that the defendant/ petitioners counsel Mr.P.S.Pandian appeared. No doubt, it is mentioned so, but the learned counsel himself admits that there was no argument by the said Mr.P.S.Pandian. That means there was no participation by the mentioners counsel in the trial court, even though he might have been present in the court at the time when the said I.A. was taken up and the order was passed. So, it is only to be taken that the order dated 6.9.1991 was an exparte order.

3. Even assuming that the order was an ex parte order, the learned counsel for the petitioner argues that it was a final order in the abovesaid LA. and not in interim order in the said I.A. and that hence O.39, Rule 4, C.P.C, cannot be resorted to and that hence Abdul Shukeer Sahib v. Umachander and another, 1976 T.L.N.J. 159 would not apply to the present case. I also find from 7976 T.L.N.J. 159, that it related to a case where an appeal was filed under O.43, Rule l(r), C.P.C. against an interim order in an I.A. when only the affected party could resort to 0.39, Rule 4, C.P.C. only in that context the Division Bench held in the said decision that a C.M.A. under 0.43, Rule l(r), C.P.C. would not lie. But as I already indicated the present case is a different one since the abovesaid order dated 6.9.1991 is not an interim order in the said I.A., but it is a final order, though it may be ex parte order. When such is the case, no doubt the defendant could have filed a petition to set aside the said exparte order,but that does not mean that he cannot have the other remedy, viz. filing an appeal under 0.43, Rule l(r), C.P.C. So, it is clear that the abovesaid C.M.A. is maintainable. The lower appellate court has dismissed the C.M.A., only on the abovesaid maintainability question. It did not go into the merits of the LA. at all. Therefore, since I held that the said CM. A., is maintainable, I am only to remand the case back to the lower appellate court, after setting aside the order passed in the said C.M.A. Accordingly, I set aside the order passed in C.M.A.No.43 of 1991 and remand the matter back to the lower appellate court for trying the said C.M.A. afresh on its merits. I may also point out that the counsel for respondent could not advance any serious argument contra. Accordingly, the civil revision petition is allowed. No costs.