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2017 DIGILAW 2516 (RAJ)

Kishan Singh v. Gajanand Barodiya

2017-11-15

ARUN BHANSALI

body2017
JUDGMENT Arun Bhansali, J. - This appeal is directed against the order dated 13.10.2017 passed by the First Appellate Court, whereby, the prayer made by the appellants for grant of ad interim injunction has been rejected. 2. The appellants filed a suit for declaration and permanent injunction in the Court of Civil Judge, Kotdi, District Bhilwara, seeking a declaration regarding the validity of No Objection Certificate dated 23.2.2016 issued by the District Magistrate, Bhilwara under the Petroleum Act, 1934 and seeking injunction against the defendants from setting up retail outlet at the location for which the NOC was granted. 3. In the suit an application under Order 7 Rule 11 CPC was filed by defendant No.1, inter alia, claiming that the suit as ''barred by law'' in view of provisions of Section 56 of the Petroleum and Natural Gas Regulatory Board Act, 2006 and Rule 154 of the Petroleum Rules, 2002, besides raising objections about the maintainability of the suit as barred by res judicata and that the issue raised was not covered under provisions of section 91 CPC as no Public Nuisance was involved. 4. The trial court by its order dated 7.9.2017 accepted the application under Order 7 Rule 11 CPC and rejected the plaint. 5. Feeling aggrieved, the appellants filed First Appeal under section 96 CPC alongwith an application under Order 39 Rule 1 & 2 CPC seeking injunction against the respondents, herein, from continuing with the setting up of the retail outlet. 6. In the appeal, while the Petroleum Company i.e. Hindustan Petroleum Corporation Ltd., was served and it appeared, the respondent No.1, herein, was not served and as the matter was getting adjourned, a prayer was made by the appellants for grant of ad interim injunction. 7. The First Appellate Court by its order dated 13.10.2017, rejected the application by making observations, on the merit of the case of the appellants, maintainability of the suit and rejected the prayer and fixed the matter for 1.11.2017 for the service on respondent No.1 herein, and for reply. 8. On 1.11.2017, the respondent, herein, was directed to be served by substituted service through publication in newspaper and next date fixed is 25.11.2017. 9. The appellants aggrieved by the order dated 13.10.2017 filed an appeal on 24.10.2017, wherein, a caveat was filed by respondent No.1 on 27.10.2017 along with a copy of the order dated 13.10.2017. 10. 8. On 1.11.2017, the respondent, herein, was directed to be served by substituted service through publication in newspaper and next date fixed is 25.11.2017. 9. The appellants aggrieved by the order dated 13.10.2017 filed an appeal on 24.10.2017, wherein, a caveat was filed by respondent No.1 on 27.10.2017 along with a copy of the order dated 13.10.2017. 10. In view of the fact that before the First Appellate Court the order dated 13. 10.2017 was passed in presence of respondent No.2 - Hindustan Petroleum Corporation Ltd. and in the present appeal caveat has been filed by respondent No.1 i.e. the beneficiary of the NOC and the dealer setting up the retail outlet, learned counsel Mr. Manoj Bhandari, who usually appears for respondent No.2 - Corporation, was directed to put in appearance. 11. Learned counsel for the appellants made submissions pertaining to the fact that the trial court committed grave error in dismissing the suit as ''barred by law'' with reference to the provisions of the Petroleum and Natural Gas Regulatory Board Act, 2006 and Petroleum Rules, 2002, it was submitted that the suit was not barred. Further submissions were made that on the one hand respondent No.1 was not appearing before the First Appellate Court and on the other hand, a caveat has been filed in the present proceedings, which clearly indicates about respondent No.1 being aware of the proceedings pending before the First Appellate Court and playing hide and seek. 12. Learned counsel appearing for the respondent No.1 also made submissions pertaining to the maintainability of the suit and made submissions pertaining to the bonafides of the appellants in filing the proceedings seeking to stall the setting up of retail outlet. 13. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 14. So far as the order dated 13.10.2017 is concerned, the First Appellate court while considering the prayer for ad interim relief without even waiting for the response of the respondents, herein, has made observations pertaining to the merit of the appeal itself and has rejected the prayer. The observations have been made without apparently going through the law cited and/or the provisions involved. 15. The observations have been made without apparently going through the law cited and/or the provisions involved. 15. However looking to the circumstances of the case, wherein, only an ad interim prayer has been refused and T.I. application itself is pending consideration in the First Appeal, it would be in fitness of things that the First Appellate court is directed to hear and decide the application under Order 39 Rule 1 & 2 CPC filed by the appellants at an early date and direct the respondent No.1 to put in appearance before the First Appellate Court and argue the matter on the said date. 16. In view of the above, the appeal filed by the appellants is disposed of with the direction to the parties to appear before the First Appellate Court on 21.11.2017. 17. The First Appellate Court is directed to hear and decide the application under Order 39 Rule 1 & 2 CPC within a period of one week from the date, the parties appear before it i.e. by 28.11.2017. 18. The respondents shall ensure that reply, if any, to the T.I. application would be filed by 21.11.2017. 19. It goes without saying that the trial court shall hear and decide the application filed by the appellants under Order 39 Rule 1 & 2 CPC on its own merit without being influenced by its order dated 13.10.2017 and/or any observations made, hereinbefore.