CONTINENTAL EXPORTS Vs. SOUTHERN POWER DISTRIBUTION CO LTD

JUDGEMENT

(1.) Head Sri J. Seshagiri Rao Advocate representing the appellants and Sri K. Ravindra Kumar, learned counsel representing the respondents.

(2.) It is brought to my notice that the present civil miscellaneous appeal is filed under Order 43 Rule 1 of the Code of Civil Procedure as against an order dt. 22-11-2002 in LA.No.1950 of 2002 in O.S.No.5 of 2002 on the file of the 1st Additional District Judge, Nellore. As can be seen from the material available on record only urgent notice was ordered. The main grievance of the appellant is that instead of passing an order of restoration of status-quo as on 30-10-2001, in the facts and circumstances of the case ordering urgent notice is bad in law.

(3.) I am of the opinion that mere ordering of notice cannot be construed to be an order so as to maintain an appeal under Order 43 Rule 1 of the Code of Civil Procedure. Hence as against such an order the appeal is not maintainable. However, at this stage the learned counsel for the appellant requested the court to permit him to convert the proceeding under Article 227 of the Constitution of India, since appropriate directions can be given in such a proceeding. In view of the facts and circumstances of the case which had been explained in detail by the learned counsel for the appellant and also after hearing the learned counsel for the respondents, the learned counsel for the appellant is permitted to convert the proceeding into one under Article 227 of the Constitution of India within a period of ten days. Office is directed to return the papers for carrying the appropriate amendments if any.