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Madhya Pradesh High Court · body

2014 DIGILAW 652 (MP)

Rajabeti v. Neetu

2014-06-17

SHEEL NAGU

body2014
ORDER 1. This MCC under Order 41 rule 21 of CPC seeks recalling of the order dated 29.8. 2011 passed in M.A. No.1076/2011 where by this Court granted temporary injunction of status quo after reversing the order of rejection of the said prayer by the trial Court. 2. Learned counsel for the rival parties are heard. 3. The sole ground raised in support of the present MCC by the learned counsel for the petitioner is that the order dated 29.8. 2011 in M.A.No.1076/2011 was passed without hearing the petitioners herein who are four in number and were respondents No.6, 7, 8 and 9 in M.A.No.1076/2011. It is thus contended that the order having been passed against the interest of the review petitioners ex-parte ought to be recalled and M.A.No.1076/2011 be reheard. 4. Per contra learned counsel for respondents No.1 to 3 placing reliance on the provisions of Order 41 rule 14 (3) CPC contends that the four petitioners herein, were defendants No.6, 7, 8 and 9 before the trial Court, were proceeded ex-parte by the trial Court by order dated 12.11.2010 on the failure of the said defendants 6 to 9 to make their appearance before the Court despite notices having been served on the said defendants. It is contended by learned counsel for the respondent that since the said defendants were proceeded ex-parte at the time of passing of the interlocutory order dated 23.6. 2011 in the Court of first instance (trial Court) which was assailed in M.A.No.1076/2011, it was not necessary for the appellate Court while hearing M.A. No.1076/2011 to serve notice on the said defendants 6 to 9 who were ex-parte in the trial Court. 5. Learned counsel for parties placed reliance on the decisions of Full Bench of this Court in the case of Jamuna Bai and others v. Chhote Singh and others Reported in 2004(1) JLJ 227 = 2004(2) MPLJ 376 and in the case of Imrat Lal v. Vishnu Prasad and others reported in 2007 (1) MPLJ 540. 6. From the perusal of the record of the trial Court, it is evident that despite service of notice on the defendants 6 to 9 (petitioners herein) the said defendants did not make any appearance or representation compelling the trial Court to pass interlocutory order dated 12.11. 2010 proceeding ex-parte against the said defendants. 6. From the perusal of the record of the trial Court, it is evident that despite service of notice on the defendants 6 to 9 (petitioners herein) the said defendants did not make any appearance or representation compelling the trial Court to pass interlocutory order dated 12.11. 2010 proceeding ex-parte against the said defendants. While the defendants 6 to 9 were ex-parte, the application for temporary injunction under Order 39 rule 1 and 2 was rejected by the trial Court on 23.6. 2011 which came to be assailed in M.A. No.1076/2011. 7. Pertinently, the defendants 6 to 9 as late as on 7.3.2012 succeeded in recall of order of proceeding ex-parte by successfully filing an application under Order 9 rule 7 CPC. 8. However the factual matrix disclosed above makes it clear that at the time when M.A. No.1076/2011 was filed and till the same was decided on 29.8. 2011 the defendants 6 to 9 were in the state of having been proceeded ex-parte before the trial Court. 9. This Court decided M.A. No.1076/2011 without issuing notice to any of the respondents (including the petitioners herein/defendants 6 to 9). The respondents No.6 to 9 in M.A. No.1076/2011 were represented while the remaining respondents including the petitioners were neither represented nor noticed. 10. Undoubtedly, the petitioners herein/defendants No.6 to 9 were proceeded ex-parte before the trial Court. Thus status of the defendants 6 to 9 having been proceed ex- parte continued from 12.11.2010 to 7.3.2012. During the interregnum period between these two dates M.A. No.1076/2011 came to be decided without noticing and hearing defendants 6 to 9. 11. True it is that notices were not issued in M.A.No.1076/2011 but looking to the factual background that defendants 6 to 9 had been proceeded ex-parte it was not incumbent upon this appellate Court in M.A. No.1076/2011 to ensure issuance of service of notice on defendants 6 to 9 in view of the over-riding provisions of Order 41 rule 14(3) CPC. 12. In view of the above, recalling of the order dated 29.8.2011 passed in M.A. No.1076/2011 would be an exercise in fatality as the defendants 6 to 9/petitioners herein having proceeded ex-parte cannot claim right of being noticed in M.A. No.1076/2011. 13. 12. In view of the above, recalling of the order dated 29.8.2011 passed in M.A. No.1076/2011 would be an exercise in fatality as the defendants 6 to 9/petitioners herein having proceeded ex-parte cannot claim right of being noticed in M.A. No.1076/2011. 13. Reliance placed on Full Bench decisions of this Court in the case Jamuna Bai (supra) and Imrat Lal (supra) is of no avail to the petitioner since the said decision reiterated and confirmed the stand taken by this Court herein above. 14. In view of the above no case for recalling of the order is made out. 15. Accordingly, this MCC deserves to be and is therefore rejected.