Prince Pipes And Fittings Limited vs Prins Polytech Private Limited
2022 Latest Caselaw 10148 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 995/2021

Prince Pipes And Fittings Limited, Plot No. 1, Honda Industrial Estate, Phase Ii, Honda Sattari Honda, Goa-403530 And Corporate Office At The Ruby, 8Th Floor, 29, Senapati Bapat Marg (Tulsi Pipe Road), Dadar (West), Mumbai-400028, Maharashtra, India

----Appellant Versus Prins Polytech Private Limited, G-1/881 And G-1/882, 4Th Phase, Boranada, Ricoh Industrial Area, Jodhpur-342005

----Respondent

For Appellant(s) : Mr. M.S. Singhvi, Sr. Advocate, through VC with Mr. Gopal Bose For Respondent(s) : Dr. Ashok Soni, Sr. Advocate with Mr. Divyanshu Choudhary

JUSTICE DINESH MEHTA

Order

03/08/2022

1. The instant appeal is directed against the order dated

18.02.2020, passed by the learned Additional District Judge, No.4,

Jodhpur Metropolitan (hereinafter referred to as 'the trial Court').

2. Precisely narrated, the facts are that the respondent-plaintiff

filed a suit for injunction so also an application under Order XXXIX

Rules 1 and 2 of the Code of Civil Procedure seeking temporary

injunction.

3. The suit aforesaid, which was registered as Suit

No.437/2019, was initially filed before the District Judge, Jodhpur

Metropolitan, whereafter, the same was transferred to the trial

Court. On 04.12.2019, the trial Court ordered to issue notices to

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the defendant (petitioner herein) making them returnable on

23.12.2019.

4. On 23.12.2019, the trial Court awaited report of service and

posted the matter on 04.01.2020. On 04.01.2020, the trial Court

adjourned the matter to 30.01.2020, on which date while holding/

treating the service to be affected, the case was posted to

13.03.2020.

5. In the meantime, the respondent (plaintiff) moved an

application under Section 151 of the Code on 01.02.2020 and

requested the trial Court to take up the case on 03.02.2020 citing

urgency. The trial Court accepted respondent's said application

and posted the temporary injunction application for consideration

on 04.02.2020, while recalling the earlier date (13.03.2022)

already fixed.

6. On 04.02.2020, the defendant (appellant herein) did not

appear; the trial Court heard the application for temporary

injunction ex-parte and allowed the same per viam order dated

18.02.2020.

7. Against the order aforesaid, the present appeal has been

preferred.

8. Mr. M.S. Singhvi, learned Senior Counsel appearing for the

appellant argued that the trial Court has erred not only in

considering the notices to be served but also in allowing the

application and preponing the date and taking up the matter on

04.02.2020, though the date fixed was 13.03.2020.

9. While highlighting that the track-report, upon which the trial

Court has relied, itself shows that the notices have been served on

27.12.2019 - after the date of hearing (23.12.2019), learned

Senior Counsel argued that such service of notice cannot be

(3 of 5) [CMA-995/2021]

treated to be a proper service, particularly when the date of

hearing has passed.

10. Learned Senior Counsel further argued that as the date of

hearing (13.03.2020), was already fixed, the Court was not

justified in preponing the date and abruptly taking the matter on

04.02.2020, without issuing notice of the application seeking early

hearing.

11. It was also argued by learned Senior Counsel that the suit

cannot be tried by the Civil Court and it is required to be

considered/heard by Commercial Court as per the judgment of

Delhi High Court, dated 10.03.2022 rendered in the case of Vishal

Pipes Limited Vs. Bhavya Pipe Industry [FAO-IPD 1/2022 & CM

Appls. 12-14/2022].

12. Dr. Soni, learned Senior Counsel appearing for the

respondent, on the other hand, submitted that the plaintiff

(respondent herein) was bonafide; the Court itself was pleased to

hold that the service had been affected. He submitted that looking

to the urgency, the plaintiff was justified in seeking early hearing

of the case.

13. It was also argued by Mr. Soni that the notices have been

served upon the defendant (appellant herein) on 27.12.2019, may

be, after the due date of hearing, but then, it was incumbent upon

the defendant (appellant herein) to engage a lawyer or appear

before the Court and take care of the pending case against it.

14. Learned Senior Counsel thus, argued that the appellant itself

has remained indolent towards its rights and intentionally avoided

to appear before the trial Court and now has approached this

Court by way of present appeal raising grievance against the

proceedings undertaken by the trial Court.

(4 of 5) [CMA-995/2021]

15. Heard learned counsel for the parties and perused the

material available on record.

16. Having perused the proceedings drawn by the trial Court and

the track-report, it is undisputed that the notice of date of hearing

of 23.12.2019 came to be served upon the present appellant on

27.12.2019.

17. In the opinion of this Court, purported receipt of registered

envelope by the defendant (appellant herein) on 27.12.2019

cannot be treated to be a proper service in the eye of law. A

notice received after passing of the date of hearing has no legal

sanctity. Had this notice been sent through regular process,

obviously either the Process Server would have returned the same

or the recipient of notice/noticee could have legitly refused the

same.

18. In the opinion of this Court, the proceeding drawn on

30.01.2020 by the trial Court treating the service to be sufficient

itself is contrary to procedure established by law. All the

subsequent proceedings are, therefore, also nullity and liable to be

quashed and set aside.

19. This Court is not much convinced with the argument of the

respondent that after receipt of the notice the defendant ought to

have appeared and taken care of his case. Firstly, the service was

not properly affected, and then, the date of hearing (13.03.2020)

has been abruptly changed to 04.02.2020. If the plaintiff was so

curious to get the date changed, it was required to serve a copy of

the application upon the defendant. Concededly, that has not been

done by the plaintiff and an order of injunction came to be passed

behind the back of the defendant (present appellant).

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20. The appeal is, therefore, allowed; impugned order dated

30.01.2020 so also the order dated 18.02.2020 is hereby quashed

and set aside.

21. The stay application also stands disposed of accordingly.

22. Both the parties shall appear before the trial Court on

03.09.2022 - no further notice will be required to be issued to the

appellant (defendant). The trial Court shall, thereafter, proceed in

accordance with law, of course after giving reasonable opportunity

of filing reply/ written statement to the defendant.

23. It is deemed appropriate and hence, ordered that the

application for temporary injunction shall be decided as early as

possible, preferably by 15.11.2022.

(DINESH MEHTA),J 90-skm/-

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