Ashok Nagar Welfare Association ... vs Jawahar Lal And Ors.
1997 Latest Caselaw 651 Del

JUDGMENT

Devinder Gupta, J.

(1) This is an appeal arising out of order dated 7th November, 1989 passed by learned Single Judge in 1.A. No. 259/87 directing the said application to be decided alongwith the main suit.

(2) The appellant has filed suit (S. No. 273/86), during pendency whereof, the aforementioned application under Order 39, Rule 2-A, Civil Procedure Code was filed complaining that there has been disobedience of the interim order passed on 6.2.1996 in I.A.No. 846/86, which was made absolute on 5th August, 1986.

(3) On this application which was being tried separately, learned Single Judge, in the impugned order observed that the plaintiff/appellant will have to prove by leading evidence alongwith the evidence in main suit the precise act of disobedience alleged on the part of defendant-respondent No. 3.

(4) In appeal as many as 10 respondents were imp leaded. The appeal after notice was duly admitted for hearing on 20.2.1991 whereafter service could not be effected on the respondents though they were served before admission. Respondents were ordered to be served by publication. After service an application was moved by the appellant for early hearing. Notice on the said application was directed to be issued to the non-applicants.Againon 19.9.1996, when fresh notice was directed to be issued, the appellant preferred Special Leave Petition in Supreme Court urging that the earlier service effected on non-applicants was sufficient and it was not obligatory now to serve respondents again.Supreme Court on28.4.1997 disposed of the Special Leave Petition reserving liberty to the appellant to move this Court for modification of the order dated 19.9.1996. Accordingly, on 16.5.1997, fresh order was passed directing the respondents to be served by publication for today. Notice has been duly published in the Statement on 9th June, 1997.

(5) Nobody is appearing for respondents. Learned Counsel appearing for the appellant submits that the present appeal may be confined only to respondent No. 3, namely, jai Chand. Presence of the other respondents is not necessary. Accordingly, the names of respondents other than Jai Chand are ordered to be deleted from the array of parties. Necessary corrections be carried out in the cause title.

(6) An application under Order 39, Rule 2-A complaining disobedience of an order of injunction is required to be decided on the basis of the evidence brought on the record of the said application. Decision on such an application need not wait till the end of trial and disposal of the suit. The limited issue in such like application which an applicant has to prove would be that whether there has been willful disobedience of the order passed by the Court. Learned Single Judge as such was not correct in directing the application to be kept pending and to be decided alongwith the suit.

(7) In this view of the matter, the appeal is allowed, the impugned order is set aside.

(8) Learned Single Judge will now proceed to hear and decide 1.A. No. 259/ 87 independently on merits.