LOVELY ARTS Vs. DISTRICT JUDGE

JUDGEMENT

(1.) THE petitioners are aggrieved by an order dated 4.1.1999 recorded by the District Judge, Varanasi, whereby an appeal filed by the Respondent No. 3 against an order of the trial Judge dated 26.10.1999 was allowed and the order of the trial Judge was set aside and the parties were directed to appear before the trial Judge on a particular date indicated in the appellate judgment. It appears that the petitioners claim to have taken a shop from Respondent No. 3 for business purposes and a big sum of money was made over to the respondent for this purpose. The respondent No. 3 did not issue any receipt for the payments, some of which were by cheques, and on repeated demands by the petitioners this respondent connived with respondent No. 4 to evict the petitioners from the shop in question. The petitioners, accordingly, filed a suit before the Civil Judge, Varanasi and made a prayer for an interim order under Section 151, C.P.C. praying therein for a direction for maintaining the status quo as regards the shop as on 24.8.1999. There was a prayer that Respondent No. 3 be directed to remove the lock that he had put on the shop. On 26.10.1999 the trial Judge recorded an interim order in favour of the petitioners and the aggrieved respondent went up in appeal before the District Judge, Varanasi, who by his order dated 4.11.1999 had allowed the appeal as aforesaid and set aside the interim order.

(2.) IT appears from the appellate order that the appeal was allowed only on the ground that the Respondent No. 4 (the defendant No. 2 in the suit) had not been heard while recording the interim order. The learned Counsel for the petitioners submitted that respondent Nos. 3 and 4 (defendant Nos. 1 and 2 in the suit) who are represented by the same set of lawyers and when the learned Counsel for the defendant No. 2 was present, albeit in the capacity of a Counsel for defendant No. 1, defendant No. 2 also stood represented and as such the order of the trial Judge was not one without nearing respondent No. 4 (defendant No. 2).

(3.) THE order dated 13.10.1999 indicates that the Court had taken up the Application 39 -C only and directed the matter to be put up on the next date for orders indicating clearly that the interim injunction granted on 24.8.1999 was to continue. On 14.10.1999 while recording an order on Application 39 -C the Court found that the Commissioner's report in application is 32 -C was yet to be ordered upon. The Court further indicated that it was a most important document and the parties were to be heard on the Commissioner's report on 21.10.1999 and only thereafter effective orders on the applications in 6 -C and 39 -C would be possible. However, on that date he directed not only 32 -C to come up for hearing on 21.10.1999 but also 6 -C and 39 -C. There is nothing in the order dated 14.10.1999 to indicate that the defendants (or in particular defendant No. 2) were present in Court on that date. The matter was finally heard on 22.10.1999 indicating clearly that the Counsel for one defendant was present while Counsel for the other defendant was absent but order dated 22.10.1999 indicate that the plaintiff and the defendant were heard on the report of the Commissioner (32 -C), the objection thereof 42 -C as filed by defendant No. 1. The order further shows that Applications 6 -C and 39 -C were also heard and order on 6 -C and 39 -C was recorded on 26.10.1999.