Delhi High Court
Indian Radiological Imaging ... vs Lalendra Upreti & Ors. on 10 January, 2019
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 10.01.2019
+ F.A.O. No.581/2018
INDIAN RADIOLOGICAL IMAGING ASSOCIATION &
ANR ..... Appellants
Through: Mr.Rakesh Tikku, Sr. Advocate
with Mr.Mohit Gupta,
Advocate.
versus
LALENDRA UPRETI & ORS ..... Respondents
Through: Mr.Meet Malhotra, Sr.
Advocate with Ms.Jaya Goyal,
Manpreet Kaur and
Ms.Bhagyashree Shukla,
Advocates for R1.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
C.M. No.54961/2018 (for exemption)
1. Allowed, subject to all just exceptions.
FAO 581/2018 & C.M. No.54960/2018 (for stay)
2. The impugned order dated 22.12.2018 passed by the court of
learned Additional District Judge -01, South District, New Delhi
('ADJ') in CS No.1145/16 (sic. 1145/18) titled as Lalendra Upreti Vs.
Indian Radiological and Imaging Association and Ors. by which
injunction was granted in favour of the respondent no.1/plaintiff
against the appellants/defendant no.1 and 4 under Order 39 Rule 1 and
2 read with Section 151 Code of Civil Procedure, 1908 (CPC), is the
subject matter of challenge in this appeal.
3. The respondent no.1 has filed a civil suit for declaration,
permanent and mandatory injunction against the appellant and
respondent no.2, 3 and 5 to 9 on 18.12.2018 along with an application
for grant of injunction under Order XXXIX Rules 1 and 2 read with
Section 151 CPC. The learned ADJ on filing of the said civil suit and
application, issued notice to the appellants and the respondent no. 2, 3
and 5 to 9 for 22.12.2018. On 22.12.2018 without giving an
opportunity to the appellants and respondent no. 2, 3 and 5 to 9 to file
their respective written statement and reply to the application for grant
of injunction, finally disposed of the application under Order XXXIX
Rule 1 and 2 CPC in favour of the respondent no.1. By impugned
order, the learned ADJ not only restrained the appellants and
respondent no. 2, 3 and 5 to 9 from re-polling of e-votes during the
pendency of the suit but also issued a mandate to immediately declare
the results of the election of Chairman and Office Bearers of the
appellant-society.
4. The order passed by the learned ADJ, on the face of it, is illegal
as the appellants have never been given opportunity to file the written
statement under Order VIII Rule 1 CPC or at least reply to the
application for grant of injunction. The learned ADJ did not grant an
ex-parte injunction on 18.12.2018 and chose to issue notice of the suit
and the application to the appellants and respondent no. 2, 3 and 5 to 9
for 22.12.2018. Issuance of notice is not a mere cosmetic formality.
Before disposing of the application under Order XXXIX Rule 1 and 2
CPC finally, he should have given an opportunity to the appellants and
respondent no. 2, 3 and 5 to 9 to file their respective written statement
or at least the reply to the application under Order XXXIX Rule 1 and
2 CPC. The learned senior counsel for the appellants states that the
appellants need only one week's time to file written statement and
reply to the application under Order XXXIX Rule 1 and 2 CPC. In the
circumstances, the order dated 22.12.2018 passed by the learned ADJ
needs to be set aside with the following directions that:-
i) the appellants/defendant no.1 and 4 shall file their
written statement and reply to the application under Order
XXXIX Rule 1 and 2 CPC positively on or before 18.01.2019;
ii) the rejoinder thereto, if any, shall be filed by the
respondent no.1 on 21.01.2019;
iii) the arguments shall be heard on the application
under Order XXXIX Rule 1 and 2 CPC by the learned ADJ on
22.01.2019; and
iv) the said application shall be disposed of within a
week after hearing the arguments by the learned ADJ without
being influenced by the impugned order dated 22.12.2018.
5. With the above directions, the appeal along with application,
being C.M. No.54960/2018, is disposed of accordingly.
(VINOD GOEL)
JUDGE
JANUARY 10, 2019
"shailendra"
