1 S.B. CIVIL WRIT PETITION NO.5637/2006 Smt. Suraj Kanwar. vs. Laxman Singh and ors. Date : 11.1.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.RR Nagori, for the petitioner. Mr.MC Bhoot, for the respondent no.1. - - - - - Heard learned counsel for the parties. The petitioner is aggrieved against the order of the appellate court dated 4.4.2006 by which the petitioner's appeal against the order of the trial court dated 18.4.1991 was dismissed. The facts of the case are very peculiar. The plaintiff/respondent no.1 filed a suit for cancellation of gift deed dated 18.3.1991 on 11.4.1991. The Court ordered issuance of summon and notices of the injunction application and fixed the date 18.4.1991. On 18.4.1991, the trial court declared the service of summon and notices of the application sufficient upon the petitioner and passed the ex-parte order and decided the 2 injunction application finally by order dated 18.4.1991. The petitioner/defendant submitted two applications – one in the civil original suit for setting aside the order to proceed ex-parte against the petitioner and another in the misc. proceedings under Order 39 Rules 1 and 2 CPC. In the proceedings under Order 39 Rules 1 and 2 CPC also, the petitioner submitted application under Order 9 Rule 13 CPC as though the petitioner was seeking setting aside of ex-parte decree against him. Since in the proceedings under Order 39 Rules 1 and 2 CPC, the trial court decided the application of the petitioner without holding any detail enquiry, therefore, passed the order on the application by order dated 18.12.1995 and rejected the petitioner's application for setting aside the ex-parte injunction order dated 18.4.1991. In the main suit, the trial court framed the issue about sufficient service of summon upon the defendant and both the parties led their evidence. After evidence, the trial court vide order dated 8.1.1996 decided the issue in favour of the petitioner and held that the service of summon of suit upon the petitioner for the date 18.4.1991 was not proper. Consequently, the trial court in the main suit set aside the ex-parte order. Two 3 orders in one proceedings with respect to service of summon and notice upon the defendant came into existence in the above said manner. The petitioner being aggrieved against the order passed by the trial court dated 18.12.1995 by which the petitioner's application to set aside the ex-parte injunction order dated 18.4.1991 was dismissed, preferred appeal before the Court of Additional District Judge, Pratapgarh which was decided by the said Court as Camp Court Sujangarh vide order dated 4.4.2006. The petitioner's appeal was dismissed by the first appellate court. In view of the above reasons, the petitioner, who is contesting the suit, could not got opportunity to contest the injunction application and is having two contradictory orders – one in his favour and another against him in the matter of service of summon and notice of the suit and injunction application. The learned Additional District Judge, who dismissed the petitioner's appeal against the trial court's order refusing to set aside the ex- parte order, was of the view that ex-parte injunction order could not have been set aside by the trial court under Order 9 Rule 13 CPC and it could have been set aside under Order 39 Rule 4 CPC. Faced with this situation, it appears that it 4 was submitted on behalf of the petitioner that the petitioner's application could have been treated under Order 9 Rule 7 CPC to set aside the ex-parte order, then the appellate court observed that in that situation, the first appeal preferred by the petitioner against the order of the trial court could not have been maintainable as the order passed under Order 9 Rule 7 CPC is not appealable order. Be it as it may be, the petitioner's appeal since was dismissed, hence, the petitioner has preferred this writ petition. Learned counsel for the petitioner vehemently submitted that in view of the fact that in the main suit after evidence, the Court reached to the conclusion that the service of the petitioner for the date 18.4.1991 was not sufficient, then in view of that subsequent fact itself, the order of temporary injunction passed against the petitioner on 18.4.1991 should have been set aside at least by the appellate court or may be set aside by this Court. It is submitted that the petitioner will be put to serious prejudice in view of the fact that the petitioner is in possession and by the injunction order, he has been restrained from interfering with the possession of the respondent/ plaintiff. It is also submitted that the title of 5 the application was absolutely irrelevant and it could have been considered by the trial court itself under the provision of law for the purpose of granting relief to the petitioner. It is submitted that even it was a case of mistakes, it was due to wrong advice given to the petitioner as the petitioner could not have known the position of law without proper legal advice. I considered the submissions of learned counsel for the parties and perused the facts of the case as well as the impugned orders. Certainly, the petitioner is suffering two orders and one is against the petitioner and inspite of the fact that service of summon has not been found sufficient after enquiry whereas without holding detail enquiry, service of notice upon the petitioner on injunction application, was found sufficient. In the main suit, the petitioner is contesting whereas in the misc. proceedings, he has been denied to contest the injunction order. It happened because of the reason that the petitioner was not properly advised nor the Court applied its mind at initial stage and failed to find out under which provision the petitioner could have been granted relief or the petitioner's 6 application could have been entertained. An order passed under Order 39 Rules 1 and 2 CPC can be set aside under Order 39 Rule 4 CPC. Assuming for the sake of arguments that the question of service of summon could have been decided under Order 9 Rule 13 CPC in a proceedings under Order 39 Rules 1 and 2 CPC with the help of Section 141 CPC even then the difficulty in the way of the petitioner was that under Order 39 Rules 1 & 2 CPC, the Court decided to dismiss the petitioner's application without holding any detail enquiry and the petitioner's application was rejected summarily. The petitioner since 1991 is suffering injunction order against him. By now 17 years have already passed, the suit must have progressed during this period as unfortunately it has not been decided by the trial court in 17 years. It is true that because of the time taken by the courts in deciding the matter, the party cannot be made to suffer still only the relief the petitioner can get is that he can ask for early disposal of the suit itself as this Court is of the view that the injunction order which was in force for last 17 years cannot be set aside so as to permit the parties to change the situation during the pendency of the suit. 7 In view of the above reasons, this writ petition is hereby dismissed with a direction to the trial court to decide the suit expeditiously within a period of six months from the date of receipt of copy of this order. Copy of order be sent forthwith to the trial court. Both the parties are expected to cooperate with the trial court in deciding the suit expeditiously. (PRAKASH TATIA), J. S.Phophaliya