Malakappa Shrishail Patil v. Rangappa Channappa Patil
2021-03-09
SACHIN SHANKAR MAGADUM
body2021
DigiLaw.ai
ORDER : The captioned writ petition is filed by the defendant challenging the order dated 02.09.2020 passed on I.A.No.14 in O.S.No.1248/2015. 2. The short question that would arise for consideration in the present case on hand is, whether the learned judge was justified in passing orders on I.A.No.14 on the ground that the defendant did not contest I.A.No.14. The respondent-plaintiff relying on the interim injunction granted in his favour has filed the present application in I.A.No.14 under Section 151 of CPC seeking police protection to restrain the petitioner/defendants from causing interference and obstruction to the plaintiff’s peaceful possession and enjoyment of the suit land. The learned Judge has granted police protection which has to be granted in exceptional cases. The Courts are required to exercise discretion judicially while granting police protection to the party having benefit of interim injunction. 3. The learned Judge has proceeded to pass order on I.A.No.14 by observing at Paragraph No.2 of his order that, the defendant is absent and his counsel is also absent. 4. Learned counsel for the petitioner would submit to this Court that on account of COVID, the counsel appearing for the petitioner is resident of Belagavi and as such he was unable to travel to Athani to conduct the case. On account of COVID, it is stated across the Bar that, even the parties would not allowed to appear before the Court. On this short point, I would find that the order passed by the learned Judge on I.A.No.14 is without hearing the petitioner in the present case on hand. There are cogent reasons assigned by the petitioner for having failed to contest the application filed in I.A.No.14. 5. At this juncture, learned counsel appearing for the respondent would vehemently argue and contend before this Court that the order under challenge does not suffer from any infirmities and the same would not warrant any interference by this Court. 6. Without going into the merits of the case, having regard to the facts and circumstances in the present case on hand, I am of the view that the order under challenge needs to be set aside. The material on record prima facie indicates that defendant had justifiable grounds in not attending the Court on 02.09.2020. It is stated across the Bar that, the litigants were not permitted to enter the Court premises. 7. This is not seriously disputed by the respondent plaintiff.
The material on record prima facie indicates that defendant had justifiable grounds in not attending the Court on 02.09.2020. It is stated across the Bar that, the litigants were not permitted to enter the Court premises. 7. This is not seriously disputed by the respondent plaintiff. If the litigants were not permitted to attend hearing, the learned Judge was not justified in calling out the present petitioner and thereafter observing in the order that the defendant was called out and he remained absent. On this short point, the order under challenge is liable to be set aside. 8. For the reasons stated supra I pass the following order: The writ petition is allowed. The impugned order passed on I.A.No.14 is set aside. The petitioner/ defendant shall file objections to I.A.No.14 on the next date of hearing without seeking further adjournment. If such objections are filed, the learned Judge shall hear both the parties and thereafter proceed to pass order in accordance with law.