The Court directed the trial court to serve notices and hear the matter on application for ad-interim relief: High Court of Shimla
High Court directs the Court to list the matter, when it would proceed to hand over notices for effecting service upon the respondents/defendants directly under Order 5 Rule 9-A CPC and then proceed to fix the matter for consideration, when arguments on the application for ad-interim relief shall be heard by the Court afresh. This honorable judgement was passed by High Court of Shimla in the case of Meena Versus Mohit Kumar Gupta and another [CMPMO No.105 of 2021] by The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The plaintiff had obtained an ex-parte ad-interim order in her favour despite a caveat petition having been filed by the respondent/defendant. The learned first appellate Court before whom the appeal was filed by the respondent committed no irregularity much less illegality in vacating the ex-parte ad-interim order that had been passed in favour of the petitioner. Record reveals that the learned first appellate Court had passed the order and directed the parties to appear before the learned trial Court, but the certified copy of the order was made available to the petitioner only. It was stated by learned counsel for the petitioner that this order was not even got uploaded on the official website by the learned first appellate Court. The learned first appellate Court needed to explain its position regarding this aspect of the matter. The order was passed by trial court referring the case of G.C. Siddalingappa vs. Veeranna, AIR 1981 Karnataka 242, C. Seethaiah vs. Government of Andra Pradesh and others, AIR 1983 Andra Pradesh 443, and M. Krishnappa Chetty and another vs. P.E. Chandrasekaran. The court was of the opinion that, “The learned first appellate Court was absolutely right in setting aside the ex-parte ad-interim order passed by the learned trial Court, but then it was also required to ensure that the order so passed directing the parties to appear before the learned trial Court on the next date of hearing was made available to the parties. Construction, if any, raised during the pendency of the litigation is always a serious matter where every day counts and it may be extremely difficult to balance the equities at later stage.”
 Hig h C o urt of H.P on 25 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACMPMO No.1021. Date of decision: 24.04.2021.Meena .....Petitioner.VersusMohit Kumar Gupta and another …...Respondents.CoramThe Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Whether approved for reporting 1 YesFor the Petitioner :Mr. Romesh Verma Advocate. For the Respondents:NemoTarlok Singh Chauhan Judgeof Civil Procedure Code is acondition precedent for serving an application oncaveator before passing interim order etc.”3.In C. Seethaiah vs. Government of AndraPradesh and others AIR 1983 Andra Pradesh 443 itwas held that: “also when a caveat is lodged it becomes not onlyth duty of the Court but also of the petitioner andhis counsel to bring to the notice of the Court thatcaveat has been lodged and the matter may notbe heard exparte etc.”4.In M. Krishnappa Chetty and another vs.P.E. Chandrasekaran @ Chandran 1993 1 MLJ 18 itwas observed as follows: “The proper procedure to be adopted in all caseswhere caveat has been filed is for the plaintiff petitioner to serve copies of the plaint andapplication on the caveator s counsel or the caveatorbefore filing them in court. He must inform thecaveator or his counsel as the case may be the dateon which he will move the application before court.He must also file acknowledgments of the receipt ofcopies obtained from the caveator s counsel or thecaveator as the case may be in court along with theapplication. On receiving such papers the office ofthe Court shall while fixing the date for the firsthearing of the application prepare a note and bring it Hig h C o urt of H.P on 25 04 HCHP 3to the notice of the presiding officer concerned thatcaveat has been entered and the caveator s counselor the caveator has been served with copies of plaintand the application. Then the presiding officer shalldirect the office of the court to issue notice to thecaveator s counsel or the caveator as the case maybe specifying the date on which the matter will beheard in the first instance. The court shall inform thepetitioner s counsel also of the said date and on thatdate both sides shall be heard before any interimorder is passed. This procedure shall strictly befollowed by all the subordinate courts. There shall beno lapse in following this procedure. 5.The Gauhati High Court in M S ContemporaryTarget Pvt. Ltd. and others vs. M S M.B. Enterprisesand others AIR 1994 Gauhati 7 in paragraphs 18 and19 held that the purpose and intend of introducing the newprovision for a caveat by authorising a party to intimate tothe Court of his intention to have notice of an intendedapplication by the adverse party so that ex parte order onan application may not be obtained by an adverse partywithout such notice. Therefore he sought to quash theimpugned order passed by the Trial Court allowing the writpetition. Hig h C o urt of H.P on 25 04 HCHP 46.Obviously in such circumstances the learnedfirst appellate Court before whom the appeal was filed bythe respondent committed no irregularity much lessillegality in vacating the ex parte ad interim order thathad been passed in favour of the petitioner.7.Record reveals that the learned first appellateCourt had passed the order on 08.04.2021 and directed theparties to appear before the learned trial Court on09.04.2021 but the certified copy of the order was madeavailable to the petitioner only on 20.04.2021.8.It is stated by learned counsel for the petitionerthat this order was not even got uploaded on the officialwebsite by the learned first appellate Court. Let the learnedfirst appellate Court explain its position regarding thisaspect of the matter.9.As observed above the learned first appellateCourt was absolutely right in setting aside the ex partead interim order passed by the learned trial Court on17.03.2021 but then it was also required to ensure that theorder so passed directing the parties to appear before thelearned trial Court on the next date of hearing i.e.09.04.2021 was made available to the parties. Hig h C o urt of H.P on 25 04 HCHP 510.Construction if any raised during the pendencyof the litigation is always a serious matter where everydaycounts and it may be extremely difficult to balance theequities at later stage. 11.Therefore in the given circumstances this Courtdirects the learned trial Court to list the matter forthwith on26.04.2021 when it would proceed to hand over notices foreffecting service upon the respondents defendants directlyunder Order 5 Rule 9 A CPC and then proceed to fix thematter for consideration on 30.04.2021 when arguments onthe application for ad interim relief shall be heard by theCourt afresh. 12.The petition stands disposed of in the aforesaidterms so also the pending application if any.Copy ‘dasti’ authenticated. 24th April 2021.Judge 