Rajasthan High Court - Jodhpur
Ram Singh vs Chetan on 1 October, 2020
Author: Arun Bhansali
Bench: Arun Bhansali
(1 of 6) [CW-7784/2020]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 7784/2020
Ram Singh S/o Shri Jagmal Singh, Aged About 35 Years,
Resident Of Village - Loonu Presently Residing At Lilriya Dhora,
Sardarpura, Barmer (Raj.).
----Petitioner
Versus
1. Chetan S/o Shri Hanjari, Resident Of Lilriya Dhora,
Sardarpura, Barmer (Raj.).
2. Mahendra S/o Shri Ambalal, Resident Of Lilriya Dhora,
Sardarpura, Barmer (Raj.).
3. Mahesh S/o Shri Chaturbhuj, Resident Of Lilriya Dhora,
Sardarpura, Barmer (Raj.).
4. Dasharath S/o Shri Shiv Narain, Resident Of Lilriya Dhora,
Sardarpura, Barmer (Raj.).
5. The Additional District Judge No. 01, Barmer (Raj.).
----Respondents
For Petitioner(s) : Mr. R.L. Dave (through VC).
For Respondent(s) : Mr. Sanjay Nahar (through VC).
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 01/10/2020 This writ petition is directed against order dated 14.08.2020 passed by Additional District Judge No.1, Barmer whereby, the order has been passed setting the appeal ex-parte and staying the order passed by the trial court.
The petitioner filed the suit for perpetual injunction, alongwith the suit an application under Order XXXIX Rule 1 and 2 CPC was filed. The trial court i.e. Civil Judge, Barmer by order dated 22.07.2020, after hearing the parties, partly accepted the (Downloaded on 01/10/2020 at 08:31:12 PM) (2 of 6) [CW-7784/2020] application and parties were directed to maintain status quo in relation to the plot in land.
Feeling aggrieved the respondents No. 1 to 4 filed appeal under Order XLIII Rule 1 (r) CPC before the Additional District Judge No.1, Barmer. The notice in the appeal was ordered to be issued on 04.08.2020 returnable on 07.08.2020. On 07.08.2020, the court observed that the service on the plaintiff by affixation was insufficient and, therefore, notices be sent by registered post and one set of notices be sent through court process and fixed 08.09.2020 as the next date.
On 14.08.2020 the respondents filed application before the appellate court inter-alia indicating that though the court has passed order for issuing fresh notices, a perusal of the notices indicates that the plaintiff had refused to take the notices and the same was affixed in presence of two witnesses and, therefore, the service is sufficient. Further submissions were made that the respondents were suffering on account of injunction passed by the trial court and, therefore, the order impugned in the appeal be stayed.
It appears that the appellate court on 14.08.2020 itself, on the said application, took the appeal alongwith the stay application on board, indicated that as the plaintiff has refused to take notices and thereafter the same have been affixed, the service was sufficient and as none was present for the plaintiff, the appeal shall proceed ex-parte and in the miscellaneous application which was filed alongwith the appeal, stayed the operation of the order passed by the trial court.
It is submitted by learned counsel for the petitioner that the appellate court was not justified in proceeding in the manner as (Downloaded on 01/10/2020 at 08:31:12 PM) (3 of 6) [CW-7784/2020] indicated inasmuch as once the appeal was adjourned to 08.09.2020, there was no occasion for the court to pass the order on 14.08.2020 reviewing its earlier order dated 07.08.2020, setting the matter ex-parte and staying the order of the trial court whereby permitting the respondents to proceed with the construction.
Submissions have been made that the entire procedure adopted by the appellate court is ex-facie contrary to law and, therefore, the orders impugned deserve to be quashed and set aside.
Learned counsel for the respondents No. 1 to 4 appearing on caveat made submissions that looking to the conduct of the petitioner the appellate court was justified in passing the impugned order which does not call for any interference.
Submissions have been made that after the injunction was passed on 14.08.2020, though the petitioner has obtained copy on 18.08.2020 no steps were taken by him for recall of the order dated 14.08.2020 and even on 08.09.2020 when appearance was given before the appellate court, time was sought for filing application under Order IX Rule 4 CPC and for filing the Vakalatnama.
It is submitted that after passing of the order by the appellate court on 14.08.2020 the respondents have proceeded with the construction and have completed the stone work and are proceeding with the finishing work. The next date fixed before the appellate court is 15.10.2020.
I have considered the submissions made by the parties and have perused the material available on record. (Downloaded on 01/10/2020 at 08:31:12 PM)
(4 of 6) [CW-7784/2020] Two orders sheets need to be noticed, the orders dated 07.08.2020 and 14.08.2020 passed in the appeal and the application for stay, respectively reads as under :-
Appeal "7-8-2020 odhy vihyk.V miŒA okafNr jsdMZ vk pqdk gSA jsLiksUMsUV jkeflag dh rkehy ¼pLik½ vi;kZIr gS tks iqu% jftŒ Mkd ls rkehy tkjh gksA jftŒ [kpkZ vihyk.V is"k djsaA ,d leu vnkyr ds ekQZr Hkh tkjh gksA i=koyh fnukad 8-9-2020 dks is"k gksA"
Stay "7-8-2020 odhy vihyk.V miŒA jsLiksUMsUV dh rkehy ¼pLik½ vi;kZIr gS tks iqu% ryc gksA i=koyh fnukad 8-9-2020 dks is"k gksA"
Appeal "14-08-2020 vihykFkhZ odhy Jh lEirjkt cksFkjk }kjk i=koyh is"kh ij ysus dk izkFkZuk i= is"k gksus ij i=koyh ryc dh tkdj vkt is"kh esa yh xbZA odhy vihyk.V mifLFkrA odhy vihyk.V us ;g tkfgj fd;k dh mrjnkrk dh rkehy fnukad 6-8-2020 dks ysus dh bUdkj ds lkFk ykSVk gSA tks fd i;kZIr gSA ftl ij i=koyh o uksfVl dk voyksdu fd;k x;kA uksfVl ij mrjnkrk }kjk ysus ls euk fd;k x;k o mlds ckn pLik fd;k x;k tks fd rkehy i;kZIr gSA mrjnkrk dh vksj ls dksbZ mifLFkr ughaA mrjnkrk dks ckj&ckj vkoktsa fnykbZ xbZ mldh vksj ls dksbZ mifLFkr ugha vkus ls mlds fo:) ,drjQk dk;Zokgh vey esa ykbZ tkrh gSA i=koyh okLrs vfxze dk;Zokgh esa iwoZ eqdZj fnukad 8-9-2020 dks is"k gksA"
Stay "14-08-2020 odhy vihyk.V miŒA eqy vihy i=koyh 05@2020 vkt is"kh esa ysus ij ;g i=koyh vkt is"kh esa yh xbZA i=koyh dk voykssdu fd;k x;kA jsLiksUMsUV@foizkFkhZ dh vksj ls mifLFkr ugha vkus ls mlds fo:) ,drjQk dk;Zokgh fd xbZA izkFkhZ o foizkFkhZ ds vf/kuLFk U;k;ky; ds vkns"k dks vkxkeh vkns"k rd LFkfxr fd;k tkrk gSA i=koyh iwoZ eqdZj fnukad 08-09-2020 dks is"k gksA"
(Downloaded on 01/10/2020 at 08:31:12 PM)
(5 of 6) [CW-7784/2020] A perusal of the order-sheets clearly indicate that on 07.08.2020 the appellate court had categorically come to the conclusion that the service by affixation was insufficient and ordered for issuance of fresh notices and fixed 08.09.2020 as the next date. Surprisingly, when application was filed by the respondents herein for taking up the matter with the submission that the service on the respondent was sufficient, the appellate court against all settled canons of law, took up the matter on 14.08.2020 itself, perused the notices and apparently reviewed its earlier order dated 07.08.2020, and went on to indicate that despite service none was present on behalf of the respondent, appeal was set ex-parte and in the stay application, stayed the order passed by the trial court.
The said procedure adopted by the appellate court cannot be countenanced under any circumstances, irrespective of the submissions made by learned counsel for the respondent emphasizing that the order dated 07.08.2020 was factually incorrect.
On perusal of the record, on the application filed by the respondents, if the court was of the opinion that its earlier order dated 07.08.2020 was incorrect, the court was required to take the said aspect into consideration, in accordance with law.
The court has proceeded as if the matter was fixed before it on 14.08.2020 itself and has passed order for proceeding ex-parte and granting stay order.
The appellate court, which is the court of Additional District Judge is not expected to proceed in a manner which leaves a party with a bad taste, as without any notice for 14.08.2020 and being heard the matter has been ordered to be proceeded ex-parte and (Downloaded on 01/10/2020 at 08:31:12 PM) (6 of 6) [CW-7784/2020] an injunction granted by the trial court has been stayed giving liberty to the respondents herein to proceed with the construction essentially frustrating the injunction granted by the trial court.
Be that as it may, the manner of proceeding with the matter leaves much to be desired and cannot be countenanced.
Consequently, the writ petition filed by the petitioner is allowed. The orders dated 14.08.2020 passed by the appellate court are set aside, the parties are directed to appear before the appellate court on 15.10.2020, the date already fixed, on which date the appellate court shall hear the parties and pass appropriate orders in accordance with law.
As the respondents have already completed the stone work, they shall not proceed further with any stone work, however, they would be free to do the necessary finishing work and / or proceed in accordance with order to be passed by the appellate court.
(ARUN BHANSALI),J 2-pradeep/-
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