- (1.) The only relief claimed in this petition is for a direction to the trial Court to decide the application 35 Ga filed by the petitioner by way of objection under Order 39, Rule 4 CPC, within a stipulated time.
(2.) The plaintiff respondents instituted Original Suit No. 717 of 2001 wherein, an ex parte injunction order was passed in their favour on 8 April 2003. On 3 May 2003, the trial Court passed an order for proceeding ex parte against the defendants. On 21 October 2003, an application 35 Ga was filed by the defendant No. 1 through its power of attorney holder for recall of orders dated 8 April 2003 and 3 May 2003. While the said application was pending, the plaintiffs moved an application 75 C praying that the alleged power of attorney set-up by respondent No. 4 is not a valid document and therefore, the objections filed by the plaintiffs against the same be decided before the objections filed by the defendants for recall of injunction order is taken up. It seems that the said plea was subject matter of consideration in Civil Misc. Writ Petition No. 7944 of 2006, wherein, this Court has observed as under: - "The learned counsel appearing for the petitioner contends that the court below, instead of taking up the application (75-C) of the plaintiff for separate decision on the matter of legality of the power of attorney held by respondent No.4, has taken it up along with the entire injunction matter including 35-C. The argument of the learned counsel does not appear to be at all comprehendible because the defendant No.4 has based his case on the alleged power of attorney only and has, thus, prayed for vacation of the exparte injunction order. Therefore, in the aforesaid circumstances, it is not decipherable as to how both the matters can be separated and decided separately. Whether the power of attorney held by respondent No.4 is a legal document and convey some right and title in him for representing respondents No. 1 to 3 or not in the present matter, is a question which is related to the matter of grant or refusal of injunction by the trial court. Both the matters are not separable and cannot be decided independently. The court below will definitely find out while disposing of the injunction matter whether the respondent No.4 has a locus in the case to represent respondents No. 1 to 3 in the suit or not and in case the court find that th power of attorney held by respondent No. 4 is not a genuine document, obviously his stay vacation application cannot be treated to be maintainable and would be rejected. But in case the court finds that the power of attorney is a correct document, it should proceed accordingly and pass suitable orders in accordance with law."
(3.) It further appears from the record that in a petition filed before this Court, a direction was issued to decide the said injunction application Paper No. 35 C and 36 C by giving strict adherence to the provisions of Order 17, Rule 1 CPC. However, despite the said direction, when the injunction matter was not finalised by the trial Court, the petitioner preferred the instant petition. Sri A.K. Singh, learned counsel appearing on behalf of respondent Nos. 2 & 3 has submitted that the instant petition has been filed by concealment of material facts. He further submitted that in the circumstances of the case, the application 75 C deserves to be decided before a decision on the application Paper No. 35 C. However, this Court is of the opinion that similar contention raised by the respondents herein was repelled by this Court while deciding Petition No. 7944 of 2006. It has been observed by this Court that both the matters i.e. decision on application Paper No. 75 C as well as on application 35 C are linked with each other and can not be dealt with separately. Consequently, the contention made in this regard can not be accepted. Since the matter had remained pending before the trial Court for a considerably long period and, therefore, this Court is of the opinion that interest of justice would be served in directing the first respondent to ensure decision on the application Paper No. 75 C as well as 35 C expeditiously, by fixing short dates and without granting unnecessary adjournment to the parties. With these observations, the petition stands disposed of.;