JUDGMENT :

This is an appeal under Section 115 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the legality and validity of the order dated 25.08.2023 passed by the learned Additional District and Sessions Judge No.1 Kamrup(M) Guwahati in Misc. Appeal No.04/2023. By the said order dated 25.08.2023 (hereinafter referred to as the impugned order), the temporary injunction which was granted by the learned trial court dated 21.02.2023 in Misc.(J) Case No.1179/2022 arising out of Title Suit No.765/2022 was set aside. At the foremost, this Court finds it relevant to take note of that the instant proceeding under Section 115 of the Code is not maintainable taking into account that the instant proceedings arises out of an order passed by the 1st Appellate Court in exercise of the power under Order XLIII, Rule 1(r) of the Code. Be that as it may, taking into account the interest of justice, this Court converts the instant proceeding from a proceeding under Section 115 of the Code to a proceeding under Article 227 of the Constitution.

2. This Court also takes note of the submission of Mr. J Sarma, the learned counsel appearing on behalf of the respondents, who submitted that the objection to the maintainability of the proceedings was taken on the date on which the instant application was moved. Inspite of that, the petitioners have not done the needful. Taking into account the above, this aspect of the matter would be dealt with at the conclusion of the instant order.

3. From the materials on record, it reveals that the petitioners herein as plaintiffs had instituted a suit being Title Suit No.765/2022 seeking declaration that the defendants have no right or authority to use the name of the plaintiff No.1 and also seeking permanent injunction and mandatory injunction. Along with the suit, an injunction application was filed which was registered and numbered as Misc.(J) Case No.1179/2022. In the said injunction application, the reliefs sought for was for directing the opposite parties, who were defendants in the suit their man, representatives, agents etc., not to carry any further activity jointly or severely in the name of the plaintiff No.1 during the pendency of the litigation and further directing the opposite parties their man, representatives, agents etc., not to celebrate jointly or severely any golden jubilee of Ek Saran Bhagawati Samaj, Assamat the Meleng Meteli Palnam Than, Ladoigarh, Jorhat, Assam from 27th January to 30th January, 2023 by using the name of the plaintiff No.1. The second prayer had already been infructuous. Be that as it may, to the said application seeking injunction, the defendants/respondents herein filed their written objection as well as in the said suit, the written statement and additional written statement was filed by the defendants.

4. The learned trial court vide an order dated 21.02.2023, after considering the three elements for grant of an injunction disposed of the said injunction application thereby restraining the opposite parties their men, representatives, agents etc., from using the name of Ek Saran Bhagawati Samaj till disposal of the dispute between the parties in Title Suit No.765/2022. Being aggrieved, the defendants have filed an appeal before the Court of the learned District Judge, Kamrup(M) at Guwahati and the said appeal upon being registered and numbered as Misc.Appeal No.4/2023 was endorsed to the Court of the learned Additional District Judge No.1 Kamrup(M) at Guwahati (hereinafter referred as the ‘1st Appellate Court’). The learned 1st Appellate Court vide its order dated 25.08.2023 had set aside the injunction order passed by the learned trial court, thereby allowing the Appeal. It is under such circumstances, that the instant proceedings have been initiated.

5. This Court has duly taken note of the order passed by the learned trial court dated 21.02.2023 whereby the learned trial court in exercise of its equitable and discretionary jurisdiction had granted t