Tarun Agarwala - (1.) -Heard Sri P. K. Singh, the learned counsel for the petitioner and Sri A. A. Khan, the learned counsel for the respondent. Since no factual controversy is involved, this writ petition is being disposed of finally at the admission stage itself without calling for a counter-affidavit.
(2.) THE petitioner is the plaintiff and had purchased an industrial unit through an auction from the U. P. Financial Corporation, and thereafter, was sanctioned a loan from the said Corporation. It is alleged that the petitioner paid various instalments, but on account of a default in the payment of the instalment, the possession of the factory was taken over by the financial corporation under Section 29 of the State Financial Corporation Act, 1951. It was also alleged that the factory, machinery, etc., was auctioned by the Corporation and that the corporation exhausted its remedy of recovering the loan under the agreement. It was also alleged that the entire amount had been recovered but the plaintiff apprehended that the corporation would make further recovery from the personal assets of the proprietor of the factory and adopt coercive measures. Accordingly, the plaintiff filed a suit claiming the following reliefs : (A) that a decree of declaration be passed in favour of the plaintiff and against the defendant declaring therein that the defendant is liable to pay a sum of Rs. 1 lac to the plaintiff firm. (B) that a decree of declaration be passed in favour of the plaintiff and against the defendant declaring therein that defendant is not legally entitled to recover any amount from the plaintiff-firm in life of its loan granted to plaintiff-firm as the remedies has already been exhausted by the defendant. (C) that a decree of permanent injunction be passed in favour of the plaintiff and against the defendant restraining therein that the defendant should not recover any amount from the plaintiff in any way specially by way of arrest against the loans of which the description has been given in the body of the plaint. (D) that costs of the suit and such other relief which this Hon'ble Court deems fit, be also awarded to the plaintiff, against the defendant. The petitioner also filed an application for a grant of a temporary injunction restraining the defendant from recovering any amount from the plaintiff against the loan taken from the Corporation. The trial court did not grant any ex parte injunction but found it fit to issue a notice to the defendant on the application for the grant of a temporary injunction. It is alleged that notice to the defendant was served, inspite of which, the defendant neither appeared nor contested the application for the grant of a temporary injunction. Consequently, the trial court considered the application for the grant of a temporary injunction and after considering the material that was available on record allowed the application for the grant of a temporary injunction by an order dated 23.8.2003 and restrained the defendant from recovering any amount from the plaintiff. It transpires that after two months of the passing of the order, the defendant appeared and filed their objections to the temporary application and also filed their written statement. The defendant also moved an application No. 93C dated 23.10.2003 praying that the ex parte injunction be recalled and the application for the grant of a temporary injunction be heard afresh on merits. The plaintiff filed his objection stating that the injunction order cannot be recalled nor the application of the defendant could be treated as an application under Order XXXIX, Rule 4 of the C.P.C.
(3.) THE trial court, after considering the matter, allowed the application and recalled the injunction order dated 23.8.2003 and directed that the application for grant of temporary injunction would be reconsidered on merits. THE plaintiff, being aggrieved by the aforesaid order, filed a misc. appeal which was also dismissed. Consequently, the plaintiff has filed the present writ petition for the quashing of the two orders. A perusal of the application dated 23.10.2003 filed by the defendant reveals that the ground for recalling the order was that it was an ex parte order and that a huge amount was to be recovered from the plaintiff. On this basis, the Court recalled its order on payment of cost of Rs. 200. The appellate court, while dismissing the appeal, held that no prejudice would be caused to the plaintiff if the matter was reheard on merits after giving an opportunity to the defendant and that, if no opportunity was given to the defendant, it would cause irreparable loss to them, inasmuch as, the amount sought to be recovered was huge. The appellate court further found that the application filed by the defendant was maintainable and could be treated as an application under Order XXXIX, Rule 4 of the C.P.C. and, even though, the defendant was served with the summons and did not appear at the time when the temporary injunction was granted, nonetheless, the plaintiff had been compensated by the payment of cost which was duly received by the plaintiff, and therefore, no prejudice would be caused in rehearing the matter.;