Ram Prasad Mishra vs Sunil Kumar Mishra

U.C. Maheshwari, J.—She is heard on the question of admission. On behalf of the petitioner, this petition is preferred under Article 227 of the Constitution of India, being aggrieved by the order dated 25.7.2013 (Annexure-P-1) passed by IVth Civil Judge Class-II Sidhi, in Civil Suit No. 143-A/12, whereby, allowing the application of the respondents/plaintiffs filed u/s 151 of CPC., the petitioner has been restrained to transfer, alienate or to create any third party interest with respect of the disputed land, till disposal of the suit.

Petitioner''s counsel after taking me through the papers placed on the record along with the impugned order argued that the application for ad-interim injunction was filed on behalf of the respondent u/s 151 of CPC., and under such provision the trial Court did not have any authority to pass such an order. So on such count, the impugned order deserves to be quashed.

In response of the query of the Court, asking that in view of the settled proposition that the nomenclature of the application is not relevant factor and only the prayer Clause is the relevant factor to decide the matter and in such premises, the trial Court has not committed any error in treating the impugned application of the respondents for issuing ad-interim injunction against the petitioners, instead to argue further, the counsel seeks permission to withdraw this petition with liberty to file the Misc. Appeal against the impugned order before the appropriate forum of the District Court having the territorial jurisdiction to hear the appeal against the order of issuing ad-interim injunction.

Considering such prayer, without expressing any opinion on merits in the matter, this petition is hereby dismissed as withdrawn and not pressed but by extending the liberty to the petitioner to file the appropriate appeal under Order 43 Rule 1(r) of CPC. to challenge the impugned order.

Office is directed to return the certified copy of the impugned order Annexure-P-1, by retaining its photocopy on record enabling the petitioner''s counsel to file the aforesaid appeal.

However, it is observed that, on filing the appropriate application u/s 14 of the Limitation Act along such appeal, the petitioner shall be entitled to get the exclusion of the period in limitation which has been spent by him in prosecuting the present petition. Certified copy as per rules.