JUDGMENT D.K. Seth, J.
1. Leave granted to convert the petition into one under Article 227 of the Constitution of India.
2. By an order dated 29th July. 1999 passed by the learned Civil Judge (Junior Division), Azamgarh In Original Suit No. 211 of 1998. an order of injunction was passed in favour of the defendant on the basis of an application under Section 151 of the Code of Civil Procedure to the extent that the plaintiff is directed to remove the earth clogging the drain at the south of the wall. This order was challenged by the plaintiff in Civil Revision No. 158 of 1999 since been allowed, reversing the order dated 29th July, 1999 by an order dated 9th August, 1999 passed by the learned District Judge, Azamgarh. These orders have since been challenged in this petition.
3. Mr. Murlidhar, learned counsel for the petitioner contends that the order that has been passed cannot be treated to be a mandatory injunction. It was only maintenance of the existing drain as was found in the Second Commissioner's report. Therefore, it was not hit by the order of injunction granted by the appellate court on an earlier occasion restraining the defendants from constructing a new drain. He also contends that unless that clogging of the drain is removed, the water through the drain could not be discharged, which used to be discharged so long. He further contends that the earth that had clogged the drain are fresh earth, which requires to be removed.
4. Dr. R. G. Padia, learned counsel for the plaintiff opposite parties on the other hand contends that since there was a direction to the plaintiff to remove the earth alleged to be clogging in the drain, therefore, it was very much an injunction, mandatory, in nature. According to him, such a relief cannot be obtained by means of an application under Section 151 of the Code. Inasmuch as when the matter squarely comes within the scope and ambit of Order XXXIX. Rule 1 of the Code, Section 151 of the Code could not be maintained. According to him, Section 151 of the Code could be maintained only when there is no provision available in the Code itself as has been held consistently by different High Courts and the Apex Court. According to him, in the present case, the facts have been properly gone into by the trial court while passing the impugned order.
5. After having heard Mr. Murlidhar, learned counsel for the petitioner and Dr. Padia, learned counsel lor the respondents, it seems that the order dated 29th July, 1999 though passed on an application under Section 151 of the Code, is in effect an order of injunction that was passed directing the plaintiff to remove the earth clogging the drain within the ambit and scope of Order XXXIX, Rule 1 of the Code. Therefore, this order is very much an order of injunction.
6. The ground on which the revision was allowed, namely, that the defendant did not pay court fee and that no mandatory injunction could be passed in favour of the defendant since he had not sought for any relief in the suit appears to be wholly misconceived. Thus, it appears that the foundation on which the revision was allowed, cannot be sustained. Therefore, this matter should be sent back for afresh decision by the Court below.
7. At the same time, as it appears though the application was inscribed as an application under Section 151 of the Code, but in effect and substance and for all practical purposes, it was an application for Injunction and the order that was passed was also on an order of injunction. The title or inscription of the application will not decide the character of the application itself. In order to decide the character of the order and the application, it is to be looked into in substance and the relief claimed. Thus the order appears to be an order under Order XXXIX, Rule 1 of the Code, which is appealable under Order XLIII, Rule 1 (r) of the Code before the learned District Judge.
8. In such circumstances, this petition is allowed. The impugned order dated 9th August, 1999 passed by the learned District Judge in Civil Revision No. 158 of 1998 is, hereby, set aside. The matter Is remanded back to the learned District Judge for a fresh decision In accordance with law. Since I have held that the order Is one under Order XXXIX, Rule 1 of the Code, therefore, it would be open to the opposite parties to apply for conversion of the revision into one in appeal and if such a prayer is made, the, said revision should be converted into appeal and shall be decided as a Misc. Appeal under Order XLIII, Rule 1 (r) of the Code. Such step shall be taken within a period of two weeks from the date and the learned District Judge concerned shall decide the appeal, since both the parties are appearing, within a period of two weeks thereafter.
9. With these directions, the writ petition is disposed of accordingly.
No cost.