Lalit Verma and Others vs Smt. Hema Sharma, Smt. S. Sharma, Miss Shikha, and Shri Harsh Sharma

Dev Darshan Sud, J.—The petitioner in this case is aggrieved by the orders passed by the learned trial Court on 29.7.2011 disposing of an application u/s 151 of the CPC (hereinafter `CPC'') stating that the case is pending for adjudication before the Court, which was fixed for filing objections on behalf of the applicant, the case was called on 10.40 A.M. and counsel representing the applicant sought time till 2.00 P.M. to file the relevant objections as they had been typed in his office on computer but its print could not be taken out due to the lack of ink etc. in the printer. The request made by the petitioner was turned down. The learned Court holds that an application under Order 39 Rule 2A of CPC had been instituted against the applicant-respondent for disobedience of an injunction order passed by the Court on 14.8.2002. Notice was issued to him, but despite appearance put in by him and time sought for reply, those proceedings were not contested and he was proceeded against ex-parte by an order dated 25.06.2003. Thereafter, the Court directed the attachment of his property on 5.3.2004 which was challenged by the petitioner herein, in appeal which was dismissed and warrants were issued for attachment of the property. The property was ordered to be put on sale by way of public auction by order of the Court on 31.7.2007 but the application was dismissed in default as none appeared before the Court on behalf of the applicant. This application was restored on 23.11.2007 and thereafter notice was issued to the respondent who appeared in person on 21.11.2009 and prayed for time to file objections. The case was adjourned to 11.1.2010 when another opportunity was prayed and the case was 3 adjourned to 11.3.2010. On that date, he did not file any reply and his property was directed to be sold by public auction. It is this order in which objections were sought to be instituted by the petitioner that was challenged and in which an application was filed pleading that the counsel had prepared the objections but was unable to take out a print from his computer. The Court then notices that a submission was made by the petitioner that this order has been assailed in the High Court but nothing has been placed on the record to substantiate this submission. The case was thereafter listed on 5.8.2011 on the submissions that the provisions of Order 39 Rule 2-A CPC would remain in force for one year and the property cannot be sold thereafter. On that day case could not be taken up. I have heard Learned Counsel for the parties.

So far as the orders passed by the Court are concerned, they are matter of record. What this Court is primarily concerned with is as to whether objections to the notice dated 12.10.2009 which were sought to be filed by an application u/s 151 CPC praying for exercise of inherent jurisdiction of the Court for taking on record these objections and for decision in accordance with law should have been considered. The pleading in that application, as is evident in the record, is that the case was called at 10.40 A.M. when counsel representing the applicant prayed for time till 2.00 P.M. as the objections were being typed out in his 4 office and print could not be taken out for the reasons that there was no ink in the printer. This request was turned down and opportunity for filing objection was closed. It was submitted on behalf of the petitioner that the proceedings have penal consequences and in this view of the matter, ample opportunity of being heard should be granted. There is an endorsement on the application which reads:-

11.3.2010

Presented by Sh.N.S. Chandel Adv cl for the applicant.

Office to check and report on 12.3.2010 with the main file.

Sd/-

Civil Judge(Sr. Divn.)

Court No. 3, Shimla.

Now adverting to the order sheet of 11.3.2010 which records the presence of the counsel for the parties, the order reads that the reply/objections to show cause notice has not been filed; ample opportunities have been granted and therefore, the property be attached and sold. In the order under challenge, the learned Judge holds that this order should and ought to have been challenged and entertaining it would be tantamount to review which was legally impermissible.

In the facts of the case, I hold that it is a hyper technical view which has been taken. The application u/s 151 CPC was presented on 11.3.2010 on which date order for sale etc was passed. I am quite surprised that the application was directed to be put up on 12.3.2011, in any event, what is surprising is the fact that when the counsel was prevented by sufficient cause for placing on record, the application, as to why it was not taken on the record. There is weight in the submissions made by the Learned Counsel appearing for the petitioner herein that the petitioner was condemned unheard. The order challenged does not in any manner advert to the facts as to whether the application is maintainable on the grounds as urged therein.

In this view of the matter, this petition is allowed with the direction that the application u/s 151 CPC filed by the petitioner herein for placing on record the objections be taken on the record of the case and be disposed of in accordance with law. Parties will be free to pursue their individual remedy for their rights. This order does not pronounce on the fact as to whether there has or has not any violation of the injunction order. Let record of the trial Court be sent back forthwith. Parties to appear in the trial Court on June 29, 2012.