Decided on July 31,1952

STATE Respondents


KOCHHAR, J - (1.)DURING the pendency of the suit filed by the respondent-plaintiff against the petitioner-defendants, an order under Order 39 Rule 1 & 2, C. P. C. , granting temporary injunction had been passed by the learned trial Court. The petitioners moved an application under Order 39 (4) of the C. P. C. for vacation of the temporary injunction. The application was fixed for hearing on 9. 8. 1989 on which date none appeared on behalf of the petitioners who were the applicants in that case and the learned trial Court directed that the proceedings against the petitioners be taken exparte. On the same date an application was moved by the petitioner under Order 9 Rule 7 of the Code read with Sec. 151 stating that the petitioners' learned counsel was busy in some other Court and prayed that exparte order be set aside. The learned trial Court after hearing the learned counsel for the parties allowed the application and set aside the exparte order subject to payment of Rs. 15/-as costs. The respondent-plaintiff challenged the said order by filing an appeal before the learned Civil Judge, Gangapurcity, who after hearing the appeal has, vide the impugned order dated 10. 11. 1989, accepted the appeal and set aside the order passed by the learned trial Court and had dismissed the application moved by the petitioners under Order 39 (4) of the Code which was not the subject matter of the appeal. Hence, this revision petition by the petitioners.
(2.)I have heard the learned counsel for the parties.
It is not disputed before me that on 9. 8. 1989 the case was fixed for arguments on the application under Rule 4 of Order 39 of the Code moved by the petitioners and on that date even though the petitioners were not represented when the case was called, no order was passed on the application by the learned trial Court but the only order passed was for taking exparte proceedings against them. If the application was not disposed of on that date but the case was adjourned for hearing arguments on it or without recording any proceedings, the petitioners had right to join the proceedings without getting the exparte order passed on 9. 8. 1989 set aside. It is only when some proceedings take place, after the passing of the ex parte order, an application for setting aside those proceedings is required to be made but it no such proceedings take place or if the party concerned does not want to get the exparte proceedings set aside, he can join the proceedings without any application been made by him, the appellate court without adverting to this legal position has passed the impugned order which has very fairly not been supported even by the learned counsel for the respondent. The impugned order passed by the learned Civil Judge, Gangapurcity in Civil Miscellaneous Appeal No. 49/90 cannot be allowed to stand.

Consequently, I accept this revision petition, set aside the impugned order passed by the learned Civil Judge and even the order passed by the learned trial Court imposing costs on the petitioners who had right to join the proceedings without getting any order from the Court the learned trial Court should now decide the application under Order 39 Rule 4 of the C. P. C. on its merits.

Revision petition is disposed of accordingly. .

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