RAJ KISHAN Vs. PRAHLAD

JUDGEMENT

(1.) THE impugned order is dated 04.12.2010. THE appeal against the dismissal of an application under Order 1 Rule 10 of the Code of Civil Procedure (hereinafter referred to as the `Code') had been entertained by the first appellate Court i.e. the Court of Additional District Judge. This was inspite of the fact that an objection about the maintainability of the appeal had been raised by the respondent.

(2.) RECORD shows that the present suit has been filed by the plaintiff seeking a declaration and permanent injunction against the defendant. In the course of the proceedings, an application under Order 1 Rule 10 of the Code had been filed by the applicants namely Prahlad and others which was dismissed on 10.05.2010. Appeal was filed against this order which was entertained and the impugned order holding that an appeal against the dismissal of an application under Order 1 Rule 10 of the Code is maintainable, thereafter Court had on merits allowed the appeal and impleaded the applicants as parties in the aforenoted suit.

(3.) THE trial Court had relied upon the aforenoted provisions to hold that the appeal under Order XLIII of the Code was maintainable and had thereafter proceeded to pass the order on its merits. THE trial Judge has committed an illegality. At the cost of repetition, Section 10 (1) of the said Act makes a reference only to an order passed by the Single Judge of the High Court while sitting in ordinary civil jurisdiction which order is an appealable to a Division Court. Appeal was not maintainable and could not have been entertained by the Additional District Judge. On this count alone, the order needs to be quashed. It is accordingly set aside.