IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2253 (M/S) of 2010 Shiv Mohan …Petitioner Versus Sushil Kumar …Respondent Dated: 04-01-2011 Hon’ble Tarun Agarwala, J. Heard Sri Bhupesh Kandpal, the learned counsel for the defendant/petitioner and Sri B.P. Nautiyal, the learned counsel for the plaintiff/appellant/opposite party, who has filed the Vakalatnama today which is taken on record. This Court had summoned the record of the lower appellate court, which has been duly received. The Court has perused the record. It transpires that the plaintiff/appellant/opposite party filed a suit for permanent injunction claiming that a lease deed was executed by the owner of the property in his favour. The defendant/petitioner resisted the suit and also filed a cross suit claiming that the original owner had sold out a open piece of land in his favour prior to the execution of the lease deed. The suit of the plaintiff/appellant/opposite party as well as the cross suit of the defendant was dismissed by the trial court. The trial court held that the plaintiff had failed to prove his title over the land in question. The trial court further held that the defendant had also failed to prove his title over the open piece of land, but found that the defendant was in possession. The plaintiff preferred an appeal and also filed an application for grant of a temporary injunction. Since 2 a caveat was filed by the defendant, the Incharge District Judge, by an order dated 16.12.2010, directed the appeal as well as the injunction application to be heard on 3rd February, 2011 and, with the consent of the parties, directed the parties to maintain the status-quo regarding the western side of the disputed property, i.e., the constructed area consisting of three rooms. It transpires that an application 10C2 was filed by the appellant/opposite party on 21st December, 2010 alleging that the defendant was raising construction on the open piece of land in defiance of the injunction order and consequently prayed for an issuance of a Court Amin so that a spot inspection could be made. On the margin of the application, there is an endorsement that the counsel for the defendant had refused to accept the application. It further transpires that along with the application 10C2, the appellant had also filed an application 11C2 along with an affidavit praying for grant of a fresh injunction. On this application, there is also an endorsement of refusal. The appellate court, after hearing the counsel for the appellant, issued notice on the application 10C2 to the defendant/opposite party inviting objections and fixed 7th January, 2011 for the disposal of the application 10C2. The order-sheet indicates that no orders were passed on the application 11C2. On 24th December, 2011, i.e., on the last working day before the winter vacation, the appellant moved another application 13C2 supported by an affidavit 14C2 praying for grant of a fresh injunction alleging that the defendant was raising construction on the land in question. On this application, there is no 3 endorsement of any kind to the effect that the defendant was served or that he refused to accept a copy and consequently, it is clear that the application 13C2 along with the affidavit was filed directly in the court without serving a copy to the defendant or to his counsel. The order dated 24.12.2010 indicates that only the appellant’s counsel was heard on the application 13C2 supported by affidavit 14C2 and on the basis of the photographs submitted by the appellant indicating that the construction activities was going on, the court directed the parties to maintain status-quo over the property in dispute till the next date of hearing, i.e., 7th January, 2011 which was the date fixed for the disposal of the application 10C2. The petitioner/defendant upon being made aware of the said order dated 24th December, 2010, filed the present writ petition, in which an order dated 30th December, 2010 was passed directing the registry to summon the record of the lower appellate court. Having heard the learned counsel for the parties, the Court is constrained to observe that professional decorum has not been maintained by the counsel for the defendant/petitioner, who had appeared before the appellate court. It is the bounden duty of an Advocate to accept the copy which is served upon him and that an Advocate has no business to refuse to accept an application in a case where he has filed his Vakalatnama and has taken the onerous duty to defend a party. Such type of tactics in delaying the judicial process and placing impediments in the dispensation of justice amounts to a professional misconduct. The petitioner has nowhere stated in the writ petition that a copy of the application 10C and 4 11C along with its affidavit was never served upon the counsel for the defendant or his Munshi nor was it refused. This Court consequently observes that such type of practice is deprecated and the trial court should take cognizance of such matter and if it is found to be correct, should issue notice to the said Advocate and if necessary, sent a report to the Bar Council for taking necessary action against the said Advocate and/or impose heavy cost on the Advocate. On the merits of the case, the Court finds that the lower appellate court had lost sight of the fact that a consent injunction order was passed after hearing the parties on 16th December, 2010 and, if the said consent order was being violated, the Court does not become helpless but has powers to pass such orders directing the party violating the order, to take remedial measures and restore the majesty of the Court. The Court could direct the defendant to restore the property to its original condition by the removal of the constructions or could direct demolition or proceed for contempt if an application under Order 39 Rule 2A of the C.P.C. was filed by any of the party or the court could take suo motu action. However, the court having proceeded to issue a notice to the defendants on the application 10C2 on 21st December, 2010, erred manifestly in passing an injunction on 24th December, 2010 without hearing the defendant/opposite party. The Court finds that the opposite party was not served with the application 13C2 and the accompanying affidavit 14C2. Without an endorsement of service of the application or refusal to receive the application, the court below could not have taken the application on record nor could it hear the counsel on the said application. The Court is 5 consequently constrained to observe that there was some thing amiss. The Court finds that the order dated 24th December, 2010 was passed in violation of the principles of natural justice which cannot be sustained. The appellate court was required to be careful and should have perused the earlier order and should have insisted that the application should be served upon the counsel for the defendant before proceeding to hear the matter, in the event, it was a case of urgency. The order dated 24.12.2010 does not indicate that there was an urgency in the matter. The court finds that the three ingredients for granting an injunction, namely, that prima-facie case, balance of convenience and irreparable injury has not been considered by the court below nor anything has been recorded in the impugned order. Further, the Court finds that the provision of Order 39 Rule 3 C.P.C. has not been complied with. No notice has been issued on the application to the opposite party nor any reason has been recorded that the object of granting an injunction would be defeated by the delay in the issuance of a notice to the defendant. In the light of the aforesaid, the impugned order dated 24.12.2010 cannot be sustained and is quashed. The writ petition is allowed. The Court directs that any construction so raised by the defendant on the property in question would be at his own risk and peril and which would be subject to further orders of the appellate court. The appellate court is directed to decide the injunction application 5C2 and other applications 10C2, 11C2 and 13C2 on the date fixed, i.e., on 7th January, 2011 and if the appellate court is unable to decide the applications on that date for whatever reasons, it will hear the 6 matter on a day-to-day basis until the said applications are disposed of. Certified copy of this order along with the record of the lower appellate court shall be remitted by the registry within 48 hours to the lower appellate court so that it reaches the lower appellate court before 7th January, 2011. The court further finds that the formal order dated 24/12/2010 issued by the Sadar Munsarim of District Judge’s Court, Dehradun is not in consonance with the order dated 24/12/2010 passed by the appellate court. Such type of fatal error indicated in the formal order is unwarranted. The District Judge is, therefore, directed to call for an explanation from the Sadar Munsarim and take appropriate action, if required, and submit a report to that effect to the Administrative Judge concerned as early as possible. The lower appellate court is directed to place the file before the District Judge at the earliest. (Tarun Agarwala, J.) 04-01-2011 Salim/