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Judgment
Manoj K. Tiwari, J
Learned counsel for the petitioner undertakes on behalf of his client to file hardcopy of the affidavit and Vakalatnama with physical signatures of
the petitioner, within two weeks from today.
In view of the undertaking given by learned counsel for the petitioner, Exemption Application (IA No. 2 of 2021) stands disposed of.
Petitioners filed a suit for permanent prohibitory injunction against the respondents. The said suit was decreed by an ex-parte order dated
30.05.2009. The defendants to the suit filed an application under Order 9 Rule 13 of C.P.C. along with delay condonation application, which was
allowed and the ex-parte decree, granted in favour of the petitioners, was set aside by learned trial court vide order dated 31.07.2015.
Petitioners challenged the said order passed by learned trial court on 31.07.2015 by filing a revision petition. The said revision petition has been
dismissed by learned 2nd Additional District Judge, Roorkee, District Haridwar vide judgment and order dated 16.06.2021.
In this petition, petitioners have challenged the order passed by learned trial court on 31.07.2015, whereby application filed by the respondents under
Order 9 Rule 13 and Section 5 of Limitation Act was allowed. Petitioners have also challenged the order passed by revisional court on 16.06.2021.
Heard learned counsel for the parties and perused the record.
Perusal of impugned order dated 31.07.2015 reveals that learned trial court has considered all relevant aspect of the matter before allowing the
application filed by the respondents. Learned revisional court has also dealt with the matter in great detail and dismissed the revision filed by the
petitioners.
I concur with the reasoning given by learned courts below.
Even otherwise also, Order 5 Rule 19 of the Code of Civil Procedure, 1908 provides for examination of the Serving Officer, in case a summon is
returned under Rule 17. The said provision was not considered by learned trial court while decreeing the suit ex-parte. Thus, there is no scope for
interference with the judgments and orders impugned in this writ petition.
Mr. Pankaj Kumar Sharma, learned counsel for the petitioners then submits that respondents are likely to transfer the property, which is subject
matter of the suit, thereby creating third party interest, which will create complications in future.
Per contra, Mr. Navneet Kaushik, learned counsel appearing for the respondents submits that since the suit is pending before the trial court,
therefore, petitioners can seek interim relief by filing an application under Order 39 Rule 2 of C.P.C. before learned trial court.
This Court finds substance in the submission made on behalf of the respondents. Since the suit is pending before the trial court, therefore,
petitioners’ may file an appropriate application seeking interim relief before learned trial court.
Having regard to the facts of the case, the writ petition is disposed of with liberty to the petitioners to file fresh application under Order 39 Rule 2
of C.P.C., if need be. If such an application is moved within one week from today, learned trial court shall consider the same and pass appropriate
order, in accordance with law, within six weeks from the date of filing of such application.
Let certified copy of this order be supplied to the petitioner within 24 hours.