1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4032 OF 2008 Bhimrao Kisan More ..... Petitioner V/s. Saraswati Shikshan Prasarak Mandal, Mahore and Ors. ..... Respondents Mr.S.D.Thokade with Mr.Pradeep S. Gole, for the Petitioner Mr.S.V.Sadavarte, for the Respondent Nos.1 to 3. Mr.A.I.Patel, AGP, for Respondent Nos.4 to 6. CORAM : P.B.MAJMUDAR, J. DATED : JULY 18, 2008. P.C. 1. Rule. 2. The learned Advocate Mr.Sadavarte, waives service of rule on behalf of respondent Nos.1 to 3 and Mr.A.I.Patel, AGP, waives service of rule for respondent Nos.4o to 6. Rule is taken for hearing forthwith with the consent of the Advocates. 3. By filing this petition, the petitioner who is the original plaintiff in Regular Civil Suit No.879 of 2005, which is filed before the Civil Judge, Sr.Division, Kolhapur, has challenged the order passed by the Ad-hoc District Judge 4, Kolhapur, in Miscellaneous Civil Appeal No.120 of 2008 dated 07-02-2008. By the impugned order, the appeal filed by the 2 respondent Nos.1 to 3 herein, has been allowed by the Ad-hoc District Judge 4, Kolhapur, by setting aside the order passed below Exh.5 and 18 by the Civil Judge, Sr.Division, Kolhapur, in the aforesaid civil suit. The aforesaid suit has been filed by the petitioner for declaration and injunction. The plaintiff has submitted two applications below Exh.5 & 18 with a prayer that the respondent Management may be restrained from interfering and obstructing the plaintiff while working as Head Master in the school during the pendency of the suit. The application at Exh.18 was preferred by the plaintiff for ad-interim injunction till the application at Exh.5 is decided by the Court. The learned Trial Judge allowed the injunction application Exh.5 and further ordered that the ad-interim injunction granted below Exh.5 & 18 to continue till the pendency of the suit. 4. The said order was challenged by the respondent Nos.1 to 3 herein by resorting to Order 43 Rule 1 of C.P.C., by filing miscellaneous civil appeal bearing No.120 of 2006 before the District Court at Kolhapur. The said appeal was decided by Ad-hoc District Judge 4, Kolhapur, who allowed the said appeal by holding that the suit is not maintainable before the Civil Court and the remedy lies with the School Tribunal. The appellate court found that without approaching to the proper forum of school tribunal, the suit could not have been filed. Against the aforesaid order of the appellate court dismissing the injunction applications submitted at Exh.5 & 3 18, the original plaintiff/petitioner has filed the present petition under Article 226 and 227 of the Constitution of India. 5. During the course of hearing, the learned Advocate for the respondent submitted that the order of termination has already been served to the plaintiff. He further submitted that additional copy of this order if required, would be given to the original plaintiff. It is submitted that in view of the said order, the plaintiff should approach the school tribunal under Section 9 of Maharashtra Employees of Private Schools Act. 6. The learned Advocate for the petitioner submitted that in the aforesaid state of affairs, the plaintiff is willing to submit appropriate appeal before the School Tribunal in accordance with law. He further submitted that the question of limitation may arise, as he was prosecuting the remedy in different forum. 6. Considering the facts & circumstances of the case, the learned Advocate for the respondent has fairly submitted that the respondent will not object the application/appeal on the ground of limitation provided such application/appeal is preferred within a period of two weeks from today. Considering the said aspect, the learned Advocate for the petitioner has submitted that the petitioner may be permitted to withdraw the writ petition, with a liberty to file appropriate application/appeal forthwith and to withdraw the suit pending before the Civil Judge, Sr.Dvn., Kolhapur, as now the 4 plaintiff would like to file appeal before the School Tribunal as per the provisions of School Tribunal Act. Permission to withdraw the writ petition is accordingly granted. Petitioner is at liberty to challenge the order of termination before the School Tribunal. If such an appeal is filed within a period of two weeks from today, the respondents shall not raise the point of limitation, as the petitioner was prosecuting the remedy in the Civil Court. The Tribunal thereafter, shall proceed with the matter in accordance with the law. It is clarified that if interim application is preferred by the petitioner, the Tribunal may decide the same without being influenced by the observations of the Civil Court in the suit and such application shall accordingly be decided as per the available material on record and as per the provisions of law. 7. In view of the above observations, the writ petition stands disposed of as withdrawn. Rule stands disposed of with no order as to costs. Copy of this order be sent to the Trial Court for disposing of the suit accordingly. ( P.B.MAJMUDAR, J. )