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2015 DIGILAW 3342 (ALL)

Anand Kumar v. Kishan Raizadey

2015-10-27

KRISHNA MURARI, RAGHVENDRA KUMAR

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JUDGMENT Heard Shri Preetam Singh Rathore, learned counsel for the plaintiffs/appellants and Shri Siddharth Verma who has accepted the notice on behalf of the defendants/respondents. 2. This appeal has been filed challenging the judgement and decree dated 18.8.2015 passed by the trial court vacating the ex-party temporary injunction order under order 39 Rule 3 C.P.C. 3. The facts giving rise to this case are that the plaintiffs/appellants filed original suit for permanent injunction and an application for temporary injunction was also filed. The trial court vide order dated 4.7.2015 while issuing the notices to the defendants/respondents passed ex-party temporary injunction order and required them to take steps as provided under order 39 Rule 3 C.P.C. The plaintiffs/appellants have taken steps. But the service was returned with an endorsement of refusal. Subsequently, the respondent no. 1 put in appearance and when the envelope in which the notices were sent to the respondent no. 1 was opened, it was found that it did not contain the entire papers in as much as the copy of the sale deed was also not sent alongwith other documents. The finding of trial court is that the plaintiffs/appellants have failed to comply with the provisions of order 39 Rule 3 C.P.C. and vacated the ex-party temporary injunction. 4. Be that as it may, the temporary injunction application is still pending consideration before the trial court. The defendant/respondent no.1 has already put in appearance. Shri Siddharth Verma appearing on behalf of the defendants/respondents states that written statement and objection to the temporary application has also been filed. The report of Amin is also on record. 5. In such circumstances, we are of considered view that the interest of justice would be served if the trial court is directed to decide the temporary injunction application itself on merits. 6. Considering the facts and circumstances of the case, this appeal stands disposed of with the direction to the Civil Judge (Senior Division), Budaun to proceed to decide the application for temporary injunction pending before him in original suit no. 240 of 2015 in accordance with law by means of reasoned and speaking order expeditiously preferably within a period of one month from the date of production of certified copy of this order.