AO/143/2021
2021 Latest Caselaw 2877 UK

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                             AND
         THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


            APPEAL FROM ORDER No. 143 of 2021


                             05th AUGUST, 2021


Between:

Dapinder Singh Marwah.
                                                                  ...Appellant

and


M/s Shaviya Packaging Solutions and others.

                                                             ...Respondents

Counsel for the appellant.       :   Mr. Adaarsh Rai and Mrs. Prabha Naithani,
                                     the learned counsel.

Counsel for the respondents.     :   None.




The Court made the following :


JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)


              The petitioner has challenged the legality of the

order dated 05.03.2021, passed by the Additional District

Judge (Commercial Court), Dehradun, whereby the learned

Judge has declined to pass an ex-parte interim order in

favour of the plaintiff.
 2.        The learned counsel for the appellant submits

that, since all the three factors, for grant of an ex-parte

interim order, were present in the present case, namely the

existence of a prima facie case, the balance of convenience,

and irreparable loss, the learned Judge was duty bound to

pass an ex-parte interim order in favour of the plaintiff.


3.        This Court has asked a pointed query to Mr.

Adarsh Rai, the learned counsel for the appellant, whether

the defendants, have been served with the notice, or not?

To this query, the learned counsel submits that the

defendants have, indeed, been served, and Vakalatnama

has been filed before the learned Trial Court.


4.        It is, indeed, trite to state that to grant, or not to

grant an ex-parte order is totally within the discretion of the

Court. Even if, prima facie, the three factors are made out,

even then the Court would be justified in not granting an

ex-parte order, and in directing that first the notice should

be served on the opposite party. It is only after hearing the

defendants that the Trial Court would be justified in passing

an interim order, or in rejecting the same.


5.        Moreover,    even   in   the   present   appeal,   the

appellant has prayed that an ex-parte ad-interim order


                              2
 should be passed against respondent nos. 1 and 2, the

defendants before the Trial Court.       However, the said

prayer cannot be granted by this Court for the simple

reason that the defendants have already put in appearance

before the learned Trial Court.


6.        Although the learned counsel claims that the

defendants are likely to sell off the property, however, even

then the appellant has sufficient number of legal remedies

against the defendants.


7.        For the reasons stated above, this Court does not

find any illegality or perversity in the impugned order. The

appeal is, hereby, dismissed.




                    _____________________________
                    RAGHVENDRA SINGH CHAUHAN, C.J.



                                    ___________________
                                    ALOK KUMAR VERMA, J.

Dt: 05th AUGUST, 2021 Rahul