IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1. S.B. Civil Writ Petition No. 6304/2008 (Municipal Corporation, Jaipur & Another Versus Additional District Judge No. 2, Jaipur City & Another) 2. S.B. Civil Writ Petition No. 6319/2008 (Municipal Corporation, Jaipur & Another Versus Additional District Judge No.2, Jaipur City & Another) 3. S.B. Civil Writ Petition No. 6030/2008 (Municipal Corporation, Jaipur & Another Versus Additional District Judge No.2 & Another) Date of Order :: 11th July, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Manoj Sharma for the petitioners Mr. R.N. Mathur) Mr. R.P. Garg )for the respondents BY THE COURT: Admit. 2. Heard learned counsel for the parties. 3. The points involved in all the three cases are same, therefore, these writ petitions are being disposed of by this common order. A copy of this order may be placed on record in connected matters also. 4. The plaintiff – respondent no.2 filed a suit for permanent injunction in the trial court against the defendants – petitioners alongwith an application for temporary injunction under Order 39 Rule 1 and 2 readwith Section 151 CPC. The trial court dismissed the -2- application of plaintiff – respondent no. 2 for temporary injunction vide order dated 25th June, 2008. Being aggrieved with the same, an appeal was preferred by the plaintiffs before the District Judge, Jaipur city, Jaipur on 26th June, 2008 which was transferred for disposal to the Court of Additional District & Sessions Judge No.2, Jaipur City on the same day. The first appellate court on the same day i.e. 26th June, 2008 itself allowed the appeal and set- aside the impugned order of the trial court dated 25th June, 2008 and restrained the defendants – petitioners from auctioning the disputed sites of the advertisement. Being aggrieved with the same, the defendants have preferred this writ petition. 5. The learned counsel for the defendants – petitioners contended that trial court passed an order rejecting the application for temporary injunction on 25th June, 2008 and appeal was preferred by plaintiffs before the District Judge, Jaipur City on 26th June, 2008 which was transferred at 12.20 PM to the Court of Additional District & Sessions Judge No.2, Jaipur city. He contended that neither a notice was given to defendants – petitioners by the -3- first appellate court of the appeal nor the record of the trial court was summoned and time of the court was also over as it was the morning court but the first appellate court allowed the appeal without affording an opportunity of hearing to the petitioners on the same day and restrained the defendants – petitioners. He contended that order passed by first appellate court is absolutely contrary to the principles of natural justice and the same is liable to be set-aside by this Court. 6. The learned counsel for the plaintiffs – respondents frankly and fairly admitted that the first appellate court has passed the impugned order without giving an opportunity of hearing to the defendants – petitioners, therefore, the order passed by first appellate court may be set-aside and case may be remitted back to first appellate court for fresh decision of their appeal on the merits. 7. I have considered the submissions of learned counsel for the parties and examined the impugned order dated 26th June, 2008 passed by first appellate court which clearly shows that appeal was transferred to the said court at 12.20 PM. The first appellate court neither issued notice to the defendants – petitioners -4- nor summoned the record of the trial court and in a hurried manner observed that matter is of urgent nature, therefore, hearing of the case is started. During the course of hearing, an official of respondents who was working as Munshi was requested to bring his counsel but he could not come, therefore, he presumed service on respondents at 12.40 PM and on the same day allowed the appeal and set-aside the order passed by the trial court. From the order passed by the first appellate court, it is clear that no notice was given to the defendants - petitioners of the appeal and for the reasons best known to it, the learned appellate court proceeded in the matter ex- parte and heard the arguments of the plaintiffs – appellants and in absence of defendants – respondents allowed the appeal and set-aside the order of the trial court. The approach of the first appellate court in deciding the appeal is totally unfair, unreasonable and against the principles of natural justice also and in these circumstances the order passed by the first appellate court cannot be allowed to be sustained and same is liable to be set-aside and same is hereby set-aside. -5- 8. Consequently all the three writ petitions are allowed and impugned orders dated 26th June, 2008 passed by first appellate court i.e. Additional District & Sessions Judge No.2, Jaipur City in all the three cases are set- aside. The case is remitted back to the District Judge, Jaipur City, Jaipur with a direction that either he himself will hear all the three appeals on merits or he will transfer the appeals to any other competent court, except the court of Mr. Arif Mohd. Madani, Additional District & Sessions Judge No.2, Jaipur City. Both the parties are directed to appear before the District Judge, Jaipur City, Jaipur on 16th July, 2008. In case the appeals are not heard on that day, then it will be open for the plaintiffs-appellants to pray the concerned court for interim order in the appeals. 9. There will be no order as to costs. 10. A copy of this order be sent immediately to District Judge, Jaipur City for compliance. (NARENDRA KUMAR Jain),J. DK