Hon’ble V.K. Shukla, J.—Anil Agrawal son of late Dharm Prakash Agrawal has rushed to this Court questioning the validity of the order dated 14.11.2011 passed by District Judge, Budaun in Misc. Case No. 98 of 2011, condoning the delay in preferring the appeal and fixing 21.11.2011 as the date for admission under Order 41 Rule 1 of the Code of Civil Procedure.

2. Brief background of the case, as it emerges from the record, is that the plaintiff-petitioner instituted original suit No. 170 of 2011 in the Court of civil Judge (Junior Division), Gunnaur, district Budaun seeking a decree of permanent prohibitory injunction restraining the defendant-respondents from establishing any retail outlet of its company within 300 meters from the retail outlet of the petitioner. The trial Court vide its order dated 7.7.2011 passed an order of injunction restraining the defendants concerned from establishing any retail outlet of its company within 300 meters from the retail outlet of the petitioner. Subsequently, on 9.8.2011, respondent Nos. 4 and 5 preferred an application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure (herein after referred to as “the Code”). Not only this, they preferred yet another application on the same day for rejection of application for temporary injunction. These applications were supported by affidavits. These respondents appeared before trial Court and participated in arguments for disposal of application for temporary injunction. Apart from it, respondent Nos. 4 and 5 also preferred Misc. Appeal under Order 43 Rule 1 (r) of the Code in the Court of District Judge, Budaun. On objection being raised that the appeal was time barred, the appellants were granted time to file application for condoning the delay. Thereafter, application was filed seeking condonation of delay in preferring the appeal. vide order dated 11.8.2011 notices were issued to the plaintiff petitioner. The plaintiff-petitioner filed objection in the said misc. appeal taking plea that the appeal was not maintainable, as the appellants had also availed the remedy under Order 39 Rule 4 of the Code by way of filing objection to the temporary injunction application. The petitioner submits that the District Judge without considering the objections raised by the plaintiff-petitioner passed the impugned order. At this juncture, petitioner has approached this Court, contending that the appeal has been illegally entertained, as once application under Order 39 Rule 4 of the Code had been moved, then pending its adjudication, appeal ought not to have been entertained, as such writ petition deserves to be allowed.

3. As the issues sought to be raised are purely legal, writ petition has been taken up for final hearing and disposal, without inviting any counter-affidavit, with the consent of the parties.

4. Sri Anoop Trivedi, learned counsel for the petitioner assisted by Sri Nitin Gupta, Advocate, contended with vehemence that on ex parte injunction order having been passed, an application had already been moved under Order 39 rule 4 of the Code for its vacation, then preference of appeal against the same very order was not at all justifiable, person dissatisfied with the grant of injunction could not have resorted to two simultaneous proceedings; one by filing application under order 39 Rule 4 of the Code and the other by preferring appeal under Order 43 Rule 1(r) against the same very order, and the doctrine of election demands that the aggrieved party should elect one either of the two remedies, as such writ petition deserves to be allowed.

5. Countering the said submissions, Sri Rahul Sahai, Advocate, representing respondent No. 4, has contended that two recourses are open to a party against whom order has been passed and under the statutory provisions contained under the Code simultaneous filing of application under Order 39 Rule 4 seeking vacation of the injunction order as well as misc. appeal against the same very order