At, High Court of Judicature at Madras
By, THE HONOURABLE MS. JUSTICE P.T. ASHA
For the Appellant: R. Srinivas, S. Adaikkappan @ Sithiraianandam, Advocates. For the Respondent: T. Balaji, Advocate.
(Prayer: Civil Miscellaneous Appeal is filed under Order 43 Rule 1 (1) of the CPC against the fair and decreetal order of the learned District Judge of the Nilgiris at Udhagamandalam in I.A.No.38 of 2016 in O.S.No.10 of 2016 dated 22.04.2022.)
1. This appeal has been filed challenging the one line order passed by the learned District Judge, Nilgiris at Udhagamandalam in I.A.No.38 of 2016 in O.S.No.10 of 2016.
2. The order in question reads as follows: “Counsel for the petitioner present. Respondent side no Arguments advanced. Hence interim order made absolute. No cost.”
3. Since the scope of dispute with reference to this interlocutory application is very limited, I do not propose to go into the facts and merits of the case.
4. The interim order of injunction which was granted on 31.03.2016 has been periodically extended and the parties have also entered trial. P.W.1 is in the witness box waiting to be cross examined. On 22.04.2022, the matter was listed for the cross examination of P.W.1, finally. On the said date, the defendant had cross examined P.W.1 and the main suit was adjourned to 10.06.2022. However, the learned Judge has proceeded to make the interim order absolute, without hearing the arguments on both the sides. The fact that the petitioner was not heard is evident from the order itself. It only states that the learned counsel for the petitioner is present.
5. Therefore, this order cannot be sustained. However, considering the fact that the parties are already in the midst of evidence and the interim order was being extended periodically, the order shall be modified as “the ad-interim injunction already granted is extended until further orders”.
6. It is now informed that on 22.07.2022, the defendant has been set ex parte. It is rather surprising that despite being informed about that this Court has seized of the matter, the learned District Judge, Nilgiris has proceeded with the hearing of the matter. It is also unfortunate that the plaintiff has not filed necessary applications before the Court informing the same since this Court had not granted interim orders of stay only on the assurance of the counsel for the respondent / plaintiff that the matter will not be proceeded further before the Trial Court.
7. Be that as it may, since the defendant had already filed an application for setting aside an ex parte order on 26.07.2022, the IA shall be numbered and the plaintiff shall endorse no objection for the said application being allowed and the application shall be allowed by the learned District Judge, Nilgiris.
8. It is informed that the matter is posted tomorrow i.e., 04.08.2022. The defendant shall endeavour to get the IA numbered by then. The defendant assures the Court that the cross examination of P.W.1 will be taken on the next hearing. Therefore, P.W.1 shall be asked to be present before the Court on 29.08.2021. On the said date, the defendant shall positively commence and complete the cross examination. If the cross examination of P.W.1 is not completed on the said date, the cross examination of P.W.1 shall be closed and orders will be passed.
9. It is also informed that the defendant has filed C.R.P.No.28
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94 of 2021 against the Order VII Rule 11 Application in IA.No.195 of 2018 in O.S.No.10 of 2016. The learned counsel appearing for the appellant / defendant assures the Court that the revision will be withdrawn. 10. The Civil Miscellaneous Appeal is disposed of on the above lines. Consequently, connected Civil Miscellaneous Petition is closed. No costs.