V GNANASIKHAMANI Vs. JOHN T TIMMS

JUDGEMENT

(1.) THIS appeals have been filed against the orders setting aside the injunction granted by the learned single Judge on 6 -8 -1993 in C.S.No.949/93 restraining the defendants 1 to 9 from interfering with the work of the plaintiffs as trustees of the trust in question. It appears that the defendants 1 and 2 had filed a caveat in the court anticipating that some stay of injunction order may be passed by the court against them. Because of the caveat, the caveators/defendants were served with a copy of plaint and documents and intimated the date of hearing. They appeared before the learned single Judge and prayed for time to file counter to the injunction application. On 6 -8 -1993 when the matter came up for consideration of the court, the defendants 1, 2 and 3 even though they had earlier appeared and asked for time to file their counter did not appear. The court felt that there was an urgent necessity of an injunction in the matter and therefore passed an order injuncting the defendants from disturbing the appellants/plaintiffs from working as Trustees.

(2.) IT appears that after the said order was passed, and came to the knowledge of the defendants 1, 2 and 3 they moved an application for setting aside the same submitting that they were prevented for sufficient cause from appearing in the court on the date of hearing. The learned single Judge considered the aforesaid application after hearing both the parties and held that the order in question was an ex parte order in so far as the defendants 1, 2 and 3 were concerned. Learned single Judge further held that there was sufficient cause for these defendants not appearing in the court on 6 -8 -1993. On these findings, the order was set aside in so far as defendants 1, 2 and 3 are concerned, but continued in relation to other defendants, O.S.A.Nos.219 and 220/93 seek to challenge the legal validity of this order.

(3.) HAVING heard the learned counsel for the parties and considered the matter in all its perspectives, we are unable to sustain the impugned order. It may be that the defendants 1 and 2 had filed a caveat and had asked for time for filing counter. But this would by itself not be enough to infer that the court while passing the order dated 6 -8 -1993 has proceeded ex parte against them. In any case, there is no such indication in the order dated 6.8.1993. It is also clear to us that on 6.8.1993, no defendant was present and the order was passed by the court only because it considered such an order necessary in the interest of justice and to protect the interest of the plaintiffs/appellants. Such an order could only be referred to Order 39 Rules 1 and 2 C.P.C. and since it was passed without hearing the defendants, it can only and reasonably be termed as an ad interim order. There appears to be no justification whatso -ever for the learned single Judge to hold that the said order was ex parte in relation to some defendants and ad interim in relation to others. Such an interpretation of the order would create a situation where two sets of defendants will have to resort to two different provisions in the Code of Civil Procedure for setting aside the said order. That procedure, in our opinion would not only be confusing but also in any event serve the interest of justice. Such procedure will also not be, in our opinion in accordance with law. The court should not have proceeded ex parte against the defendants 1 and 2 only because they have failed to appear having filed a caveat. That would, at the most not entitle them to any extra privilege or benefit under Sec.148 -A of C.P.C. but not create any disability against them. They would in such a situation, be treated like ordinary defendants and proceeded in accordance with law. In such a situation, it would have been proper for the learned single Judge to treat the order as ad interim injunction order providing an opportunity to all the defendants to show c ause as to why the same should not be confirmed. We are given to understand that the defendants 1,2 and 3 had moved the application for vacating the injunction order which could properly be referred to under Order 39 Rule 1 and 2 and not under Order 9 Rule 9 C.P.C. There was therefore no justification for treating the applications under Order 9 Rule 9 C.P.C. and allow it only on a finding of -sufficient Cause - for absence. We are of the view that the injunction should have been recalled only on a finding of merits in this behalf.