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2013 DIGILAW 19 (UTT)

SHIVANAND PANDEY v. RAJENDRA KUMAR PANDEY

2013-01-04

B.S.Verma

body2013
JUDGMENT Hon’ble B.S.Verma, J. By means of this writ peition, the petitioner has sought a writ in the nature of certiorari quashing the order impugned dated 20-12-20 12 passed by the District Judge, Udham Singh Nagar, in Civil Revision No. 68 of 2012, whereby the revision was disposed of at the admission stage without hearing the defendant-petitioner in the revision. 2. Briefly stated the facts giving rise to the present writ petition are that the respondent-plaintiff filed a suit for permanent injunction against the petitioner-defendant. During the pendency of the suit, a temporary injunction application had also been filed, which was pending for disposal and against which the petitioner filed objection under Order 39, Rule 4 C.P.C. Thereafter an application was moved before the trial Court by the plaintiff-respondent to hear the temporary injunction urgently and pass proper order. 3. On the application of the plaintiff, the trial Court passed an order on 19-12-2012 to put up the application for disposal on the date fixed. Aggrieved by the said order, the plaintiff preferred a revision before the District Judge, Udham Singh Nagar. 4. The revisional Court without issuing notice to the defendant-petitioner disposed of the revision on the first date and also passed an interim order that till the disposal of temporary injunction application (paper no. 6-C2), the defendant is restrained from selling out or to change the nature of the property in suit vide order20-12-2012, which gave rise to the present writ petition. 5. I have heard learned counsel for both the parties and perused the entire material placed before this Court including the order impugned. Since only a legal issue is involved in this writ petition, therefore, the writ petition is being disposed of at the admission stage without calling counter version. 6. The grievance of the petitioner is that there was no interim order in favour of the plaintiff passed by the trial Court. It is not disputed that the revisional court cannot decide the revision on the very first day without hearing the opposite party. 7. Learned counsel for the petitioner has contended that the learned District Judge has lost sight of the provisions of law that before passing any order against a party, it is the duty of the court to afford opportunity of hearing to such party. 8. 7. Learned counsel for the petitioner has contended that the learned District Judge has lost sight of the provisions of law that before passing any order against a party, it is the duty of the court to afford opportunity of hearing to such party. 8. In the case at hand, from a bare perusal of the impugned order, it is evident on the face of record that no opportunity of hearing was given to the petitioner by the revisional Court in revision, therefore, the learned District Judge appears to have committed a manifest error of law. 9. This Court in the case of Shashi Bhushan and two others Vs. Pradeep Kumar and two others [201 1(2)U.D., 567] in paragraph no. 12 has observed as under: “12. For what has been stated above, I am of the considered view that the order passed by the revisional Court is bad in law in so far as the restraint order has been passed against the plaintif-petitioners in continuation of the order dated 20-11-2006 on paper no. 6-C, particularly when the revision itself was not maintainable in the case at hand according to the revisional Court and as has been held by the Division Bench of the Allahabad High Court in the case of Ram Dhani (supra). The writ petition, therefore, deserves to be allowed.” 10. In the case at hand, since no order had been passed by the trial Court which could be said to be prejudicial to the plaintiff on 19-12-20 12 and only the application of the plaintiff was ordered to be put up on the date fixed, therefore, the revision was not maintainable as no legal question was involved in the order impugned and there was no adverse order against the plaintiff, therefore, no restraint order could have been passed against the defendant by the revisional Court without giving him opportunity of hearing. It is also pertinent to mention that the revision itself has been disposed of on the very first day. 11. Since the revision is not maintainable and the order in revision has been passed without hearing the defendant-petitioner, therefore, the order cannot be sustained in the eye of law. The writ petition deserves to be allowed outright. 12. The writ petition is allowed. The impugned order dated 20-12-2012 is set aside. 11. Since the revision is not maintainable and the order in revision has been passed without hearing the defendant-petitioner, therefore, the order cannot be sustained in the eye of law. The writ petition deserves to be allowed outright. 12. The writ petition is allowed. The impugned order dated 20-12-2012 is set aside. However, the trial Court is directed to decide the temporary injunction application of the plaintiff after hearing both the parties on merits in accordance with law expeditiously as far as possible without further delay.