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2011 DIGILAW 1029 (DEL)

Kuldeep Singh Hooda v. Narender Mehlawat

2011-12-01

PRADEEP NANDRAJOG, S.P.GARG

body2011
ORDER 1. File of CS(OS)1797/2008 has been summoned and perused. 2. The file would show that on 15.10.2009 status quo was directed to be maintained with respect to possession of the suit land. 3. The status quo continued till pleadings were completed and IA No. 10425/2008 i.e. the application in which interim injunction till disposal of the suits was prayed for, was listed for hearing on 13.09.2010. 4. As regards the suit, after pleadings were completed, vide order dated 23.2.2010 the matter was directed to be listed before the Joint Registrar for scrutiny on 11.5.2010 and thereafter before Court of framing of issues on 8.11.2010 and this date is important to be noted for the reason there is no order passed subsequently preponing the date of hearing of the suit. 5. As noted above, IA No. 10425/2008 was directed to be listed for hearing on 13.09.2010. The order-sheet dated 13.09.2010 simply records - `list on 25.10.2010 for orders'. 6. It is not in dispute that arguments were heard on the issue of continuance of the ad interim injunction granted by the Court i.e. in IA No. 10425/2008. 7. On 25.10.2010 the suit itself was disposed of holding that the same was not maintainable. 8. Grievance raised in appeal is that without putting the parties to notice by either framing a preliminary issue or otherwise indicating to the counsel that arguments are being heard on the maintainability of the suit, it would be procedurally incorrect to decide upon the maintainability of the suit consequent upon the arguments heard on the application seeking interim injunction, more so when the suit was listed for hearing on 08.11.2010 and had not been preponed. 9. Law requires that justice should not only be done but should manifestly be seen to be done as per the procedure prescribed by law. 10. Without commenting upon the merits of the order dated 25.10.2010, suffice would it be to state that neither was a preliminary issue settled nor was it indicated to learned counsel that arguments are being heard on the maintainability of the suit. The suit which was listed for hearing on 08.11.2010 as per order dated 23.02.2010 was never preponed for hearing. Only IA No. 10425/2008 was listed for hearing on 13.09.2010 and arguments were heard pertaining to said application. 11. The suit which was listed for hearing on 08.11.2010 as per order dated 23.02.2010 was never preponed for hearing. Only IA No. 10425/2008 was listed for hearing on 13.09.2010 and arguments were heard pertaining to said application. 11. Since a procedural wrong, vital to the interest of the plaintiff has been caused, we are constrained to dispose of the appeal setting aside the impugned order dated 25.10.2010. 12. We make it clear that we have not reflected upon the merits of the order impugned. CS(OS) 1797/2008 is restored for fresh adjudication. 13. It would be open to the learned Single Judge to settle a preliminary issue qua maintainability of the suit. It would be permissible for the learned Single Judge to decide the application for injunction as also the issue of maintainability of the suit by a composite order. 14. As regards interim orders, noting that the plaintiffs were granted status quo vide order dated 15.10.2009, and on the said order being vacated, interim orders were passed in favour of the appellants/plaintiffs in the instant appeal, we direct the status quo shall be maintained till the learned Single judge adjudicates either upon the application seeking interim relief or adjudicates, simultaneously or independently, the issue of maintainability of the suit. It is hoped and expected that the application seeking interim relief would be heard and decided by the learned Single Judge preferably by 31.03.2012. No costs.