Rehan Mohammad Shah vs Smt. Sharda Sharma and Others

Hon''ble Ms. Justice Bela M. Trivedi

The present appeal arises out of the order dated 29.10.10 passed by the Addl. District & sessions Judge, Court No. 5, Jaipur City, Jaipur (hereinafter referred to as ''the trial court'') in Civil Misc. Application No. 102/07 whereby the application filed by the plaintiffs-respondents under Order xxxix Rule 1 and 2 CPC was allowed. During the course of the arguments it was submitted by the Learned Counsel for the appellant that the impugned order has been passed by the trial court without affording opportunity of hearing to the appellant, though the court had permitted the appellant defendant to file the written statement and contest the suit on merits. According to him the Learned Counsel for the appellant was under the impression that the matter was fixed for filing the written statement by the appellant, however, the trial court decided the application for temporary injunction without affording the opportunity of hearing to the appellant.

The Learned Counsel Mr. Amit Tindal for the respondent No. 1-plaintiff submitted that the appellant was aware about the fixing of hearing of application for temporary injunction, however he did not remain present and the order has been passed.

Having regard to the submissions made by the Learned Counsels for the parties and to the impugned order it appears that the order has been passed by the trial court without giving opportunity of hearing to the Learned Counsel for the appellant. Hence, without examining the merits of the case and of the impugned order, the interest of justice would be met if the trial court is directed to grant an opportunity of hearing to the appellant in the application for temporary injunction, subject to the payment of the cost. Accordingly, the impugned order dated 29.10.10 passed by the trial court is set aside. The trial court is directed to give an opportunity of hearing to the appellant in the application for temporary injunction, subject to the appellant depositing the cost of Rs. 5,000/- before the trial court to be paid to the respondent No. 1-plaintiff within one week from today. It is, further directed that the parties shall maintain status-quo as regards the ownership, title and possession of the suit property till the pendency of the application for temporary injunction before the trial court. The appeal stands disposed of accordingly.