This order sets aside an ad interim order of the trial court that fixed the status quo without hearing counsel for one of the respondents. The High Court disposed of the connected appeals and stay petitions.
The order dated 07.10.2022 is set aside. The present appeals and stay petitions are disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2111/2022
Gram Panchayat Gangana, Panchayat Samiti Luni through its Sarpanch Gram Panchayat Gangana, Panchayat Samiti, Luni, Village Gangana, Tehsil Luni, Dist. Jodhpur. (Rajasthan)
----Appellant
Versus
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 2112/2022
Gram Panchayat Gangana, Panchayat Samiti Luni through its Sarpanch Gram Panchayat Gangana, Panchayat Samiti, Luni, Village Gangana, Tehsil Luni, Dist. Jodhpur. (Rajasthan)
----Appellant
Versus
(2 of 3)
[CMA-2111/2022]
----Respondents
For Appellant(s) : Mr. Moti Singh For Respondent(s) : Mr. Natha Ram Choudhary
HON'BLE MS. JUSTICE REKHA BORANA
Order
11/01/2023
The present two appeals have been filed against the order dated 07.10.2022 and 15.10.2022 respectively.
Vide order dated 07.10.2022, an ad interim order was passed by the learned trial Court to the effect that the status quo regarding the disputed property be maintained till the next date. While passing the said order, it has been observed that counsel for the defendant No.5 appeared before the Court and objected to the grant of the ad interim stay. After the order dated 07.10.2022 being passed, an application under Order XXXIX Rule 4, CPC was preferred on behalf of defendant No.5 with the submission that the fact stated in the order dated 07.10.2022 regarding the presence of counsel for defendant No.5 is incorrect. It was further averred in the application that the counsel was not present at that time in the Court and the Court had wrongly marked his presence as well as wrongly recorded the fact that he objected to the grant of ad interim order whereas the counsel was not heard before passing of the order dated 07.10.2022.
Vide order dated 15.10.2022, the application under Order XXXIX Rule 4, CPC was rejected by the Court with a finding that the order dated 07.10.2022 is appealable and the same cannot be
(3 of 3)
[CMA-2111/2022]
modified by the Court. However, in the order dated 15.10.2022 it has specifically been observed that counsel for defendant No.5 was not heard before passing of the order dated 07.10.2022.
Heard learned counsel for the parties and perused the material available on record.
A perusal of the ad interim order dated 07.10.2022 shows that vide the same, only the status quo regarding the property in dispute has been directed to be maintained. No other order affecting the rights of any of the parties had been directed by the Court below. However, as it is an admitted fact that counsel for defendant No.5 was not heard before passing of the said order, the order dated 07.10.2022 is set aside.
Learned counsel for the respondent submitted that the next date fixed before the trial Court is 12.01.2023 i.e. tomorrow for hearing on the application under Order XXXIX Rules 1 & 2, CPC. Both the parties would remain present before the court tomorrow and would ensure the hearing on the application under Order XXXIX Rules 1 & 2, CPC. It is made clear that if any of the parties does not remain present and does not argue on the application for temporary injunction, the trial Court would be at liberty to pass fresh and appropriate ad interim order.
With the above observations, the present appeals are disposed of .
Stay petitions also stand disposed of.
(REKHA BORANA),J
15 & 16-Dharmendra/-
3 issues framed by the court
Whether an ad interim order passed without hearing a defendant opposed to the stay is liable to be set aside under Order XXXIX Rule 1 CPC?
How to proceed when a trial court observes in a later order that a party was not heard on an earlier order but rejects an application under Order XXXIX Rule 4 CPC requesting modification?
Whether the disposal of subsequent stay petitions is necessary upon setting aside the ad interim order regarding the disputed property?
Gram Panchayat Gangana, Panchayat Samiti Luni through its Sarpanch
Prema Ram S/o Late Lal Ramji
Jera Ram S/o Late Panna Ram Ji
Tila Ram S/o Late Joga Ram Ji
Anna Ram S/o Late Basti Ram Ji
Bhiyan Ram S/o Late Durga Ram Ji
Rekha Borana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
