BAPU Vs. MAHILA HARIPYARI

JUDGEMENT

(1.) A short ground is urged to challenge the order impugned passed under Rule 2 A of Order 39 CPC. By the impugned order the Defendant Appellant is found guilty of disobedience of an order of temporary injunction and the complaint made is that he was not heard when that order was passed.

(2.) SHRI Chaturvedi who appears for the other side has done his best to support the impugned order, but I am not convinced at all by the contention pressed by the learned Counsel. There is cryptic finding recorded in the impugned order at para 4 that the instant Appellant Babu, Defendant in the Court below, had not appeared despite having served and an order was passed on 6 -9 -1990 for proceeding against him ex parte . That being the position, I had to make a research into the records and I looked at the two orders passed in the proceedings. Firstly on 3 -8 -1990 and next on 6 9 1990. I found much force in the contention pressed by Shri Ramji Sharma that when the proceeding was instituted to punish the Appellant -Defendant for breach of the induction order, the trial Court rightly took the view on 3 8 -1990 that he had to be served in accordance with law, through ordinary course and simultaneously by registered post. The next order dated 6 -9 -1990 records simply that the non -Petitioner, Babu, instant Appellant, despite service was not present and he shall be proceeded therefore ex parte .

(3.) SHRI Chaturvedi submits that though the order is not a speaking order, the order is not to be treated as perverse because the order is passed on valid materials He has drawn my attention to the material on record so available (A/D receipt) and submitted that it should be assumed that the trial Court must have seen that receipt. That contention has two flaws: firstly, in this manner judicial work is not done and judicial orders are not passed. There may be a presumption in respect of official act but there can be no such presumption in respect of judicial act A judicial order has to be passed as a speaking order giving reasons; anything done is to be recorded in the order as that will supply the 'reasons" for the order If the A/D receipt was seen that should have been recorded in the order and that not being recorded, the order is tainted on the ground itself and liable to be challenged as an arbitrary order. In the proceedings for breach of induction, which is a quasi -criminal proceeding, the burden is heavy and inexorable in regard to the offender being duly served.