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2014 DIGILAW 1824 (RAJ)

Mahima Real Estate Private Ltd. v. D. S. Kochar .

2014-11-14

ATUL KUMAR JAIN

body2014
JUDGMENT 1. - An application (T.I. No. 39/2010) for temporary injunction was filed in the court of Addl.Civil Judge(JD), East, Jaipur Metro, Jaipur and on 17.3.2011, the plaintiff in that case wanted interim temporary injunction but his prayer for interim temporary injunction was refused and the case was fixed on 29.3.2011 for the reply to the application for temporary injunction. 2. That order, though was not appealable but an appeal was preferred by the enthusiastic plaintiff in the court of Addl. District Judge No.5, Jaipur Metro, Jaipur and while deciding that Civil Misc. Appeal No. 25/20111 on 20.4.20111, it was ordered by the appellate court that till the decision of the suit, the defendant will not use the basement of the residential premises for any commercial activity. 3. Now, the order dated 20.4.2011 passed by the court of Addl. District Judge No.5, Jaipur Metro, Jaipur has been challenged in this Court by the defendants under Article 226 and 227 of the Constitution of India. Written ex parte arguments have been submitted by the learned counsel for the petitioners because non-petitioner no.1 has not given any appearance despite service. No one was present on behalf of respondent no.1 on the previous date of hearing also. In the circumstances of the case, I have gone through the record and also perused the written arguments submitted by the petitioner. 4. The petitioner has written following lines in his written arguments: "It is further submitted that the conduct of the appellate court smells the ill intention to give relief to the plaintiff, which is based on extraneous consideration." I think that the petitioner or his counsel should use the humble and polite language while drafting pleadings or written arguments and harsh and defamatory language should be avoided. 5. No doubt, in A. Vankatasubbiah Naidu v. S. Chellappan & ors., (2000) 7 SCC 695 , in para 21 the Hon'ble Apex Court observed as follows:- "It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43, Rule 1 of the Code. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43, Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39, Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule." 6. Looking to the observations of Hon'ble Apex Court and in the interests of of justice, the impugned order dated 20.4.2011 passed by Addl. District Judge No.5, Jaipur Metro, Jaipur in Civil Misc. Appeal No. 25/2011 titled as D.S. Kochar v. Mahima Real Estate Pvt. Ltd. and anr. deserves to be quashed and set aside. The matter is remitted to the trial court, viz., Addl. Civil Judge (JD), East, Jaipur Metro, Jaipur with the direction that it should decide the application for temporary injunction afresh on or before 30.11.2014. Both the parties are directed to appear in the trial court on 20.11.2014 at 10.30 a.m. and only till that date the impugned order will survive. The matter is remitted to the trial court, viz., Addl. Civil Judge (JD), East, Jaipur Metro, Jaipur with the direction that it should decide the application for temporary injunction afresh on or before 30.11.2014. Both the parties are directed to appear in the trial court on 20.11.2014 at 10.30 a.m. and only till that date the impugned order will survive. Then after, the trial court will decide the matter afresh within ten days positively.The petition filed under Article 226 and 227 of the Constitution of India is disposed of in view of the above observations and the stay petition also stands disposed of accordingly. Copy of this order sent to the trial court by speed post within three days.Petition disposed of. *******