RSEB & ANOTHER Vs. SHRI KAJOD

JUDGEMENT

(1.) During the pendency of the suit filed by the respondent-plaintiff against the petitioner-defendants, an order under Order 39 Rule 1 & 2, C.P.C, granting temporary injunction had been passed by the learned trial Court. The petitioners moved an application under Order 39(4) of the C.P.C. for vacation of the temporary injunction. The application was fixed for hearing on 9.8.1989 on which date none appeared on behalf of the petitioners who were the applicants in that case and the learned trial Court directed that the proceedings against the petitioners be taken ex parte. On the same date an application was moved by the petitioners under Order 9 Rulei7 of the Code, read with Sec. 151 stating that the petitioners' learned counsel was busy in some other Court and prayed that ex parte order be set aside. The learned trial Court after hearing the learned counsel for the parties allowed the application and set aside the ex parte order subject to payment of Rs. 15/- as costs. The respondent-plaintiff challenged the said order by filing an appeal before the learned Civil Judge, Gangapurcity, who after hearing the appeal has, vide the impugned order dated 10.11.1989, accepted the appeal and set aside the order passed by the learned trial Court and has dismissed the application moved by the petitioners under Order 39(4) of the Code which was not the subject matter of the appeal. Hence, this revision petition by the petitioners.

(2.) I have heard the learned counsel for the parties.

(3.) It is not disputed before me that on 9.8.1989 the case was fixed for arguments on the application under Rule 4 of Order 39 of the Code moved by the petitioners and on that date even though the petitioners were not represented, when the case was called, no order was passed on the application by the learned trial Court but the only order passed was for taking ex parte proceedings against them. If the application was not disposed of on that date but the case was adjourned for hearing arguments on it or without recording any proceedings, the petitioners had a right to join the proceedings without getting the ex parte order passed on 9.8.1989 set aside. It is only when some proceedings take place, after the passing of the ex parte order, that an application for setting aside those proceedings is required to be made but if no such proceedings take place or if the party concerned does not want to get the ex parte proceedings set aside, he can join the proceedings without any application having been made by him. The appellate Court without adverting to this legal position has passed the impugned order which has very fairly not be supported even by the learned counsel for the respondent. The impugned order passed by the learned Civil Judge, Gangapurcity, in civil miscellaneous Appeal No. 49/90 cannot be allowed to stand.