( 1 ) HEARD Ld. Advocates for the parties. Being aggrieved and dissatisfied with the order dtd. 15. 10. 2001, passed by the Ld. City Civil Judge, Court No. 12, Ahmedabad below exh. 5 and 6 in Civil Suit No. 4752 of 2001, the petitioner/original plaintiffs have preferred this appeal from order under Sec. 104 read with order 43 Rule 1 of C. P. C.

( 2 ) WHILE deciding this appeal from order, the following question arises before me for consideration; (I) whether the Trial Court has powers to grant any interim relief to other side under Order 39 Rule 4 of the Civil Code, when there is no prayer made in the prayer clause ? (II) Whether the defendant has to take out the fresh notice of motion to obtain any order against the plaintiff under Order 39 Rule (8) read with Sec. 6 and 7 of the Civil Procedure Code ?

( 3 ) WITH the consent of the advocates for the parties, the appeal is heard finally. The case of the petitioners/original plaintiffs in nut shell are as under:- the petitioners had filed a Civil Suit bearing No. 4752 of 2001 before the City Civil Court, Ahmedabad, to take out the notice of motion against the present respondents/original defendants, restraining them from putting gate or constructing a wall or causing any kind of obstructions or hindrances, on the land, which is used by the school, wherein, the present plaintiffs are the teachers. The school is situated at Prabhupark Society, Opp. Ramji Mandir, Punit Marg, Maninagar, Ahmedabad.

( 4 ) IT is the case of the plaintiffs that the road leading to the school is a public road and is used by the respondent society for ingress and egress, including the school students who are parking their vehicles i. e. two wheelers and cycles near the compound wall of the school. It is the case of the plaintiffs that initially the order was passed in favour of the plaintiffs in view of the prayer of the plaintiffs made in the notice of motion at exh. 5. The Trial Court, at the time of hearing has modified the order and permitted the defendants to construct the wall and gate in front of the society and also restraining the students from bringing and parking their vehicles near the compound wall of the school. However, in case of emergency, the police vehicles, ambulance van or Govt. vehicles are allowed to be brought in. Being aggrieved and dissatisfied with the order dtd. 6. 11. 2001, passed below exh. 5 and 6, the present appeal is preferred by the present petitioners.

( 5 ) AT the time of preferring this appeal, the Ld. Advocate for the petitioners Mr. H. V. Gadhavi, contended that, the petitioners are the office bearers of Rubes Parents Teachers Association. The school authority has employed two chawkidars to see that the vehicles of the students and staff are parked in such a way so that the other occupiers of the society may not be disturbed. The said road, leading to the school, is a public road and therefore, the teachers and the students are allowed to take their vehicles without causing hindrance. It was further contended by the ld. advocate for the plaintiffs that there is an end of the road near the school premises and therefore, if the students and teachers are restrained from taking their vehicles inside, they will be compelled to park their vehicles on the main road. This road is being used by the school students and the staffs since last 35 years. The Ld. Trial Judge has failed to appreciate the evidence produced on record and has also failed to applied the principles of natural justice.

( 6 ) IT is the case of the plaintiffs that, since last so many years, the petitioners and students are bringing their vehicles and cycles in the society and thereby they have got the right by way of prescription or by way of right of adverse possession. The Ld. Trial Judge has also further erred in granting relief that, the defendants have been permitted to construct the wall and the gate in front of the society. It was vehemently argued by the Ld. Advocate Mr. Gadhavi fo