Case Note & Summary
The litigation originated from a suit for perpetual injunction filed by the plaintiff-respondents to restrain trespass on the suit property. Along with the suit, a notice of motion for temporary injunction was moved. The trial court granted an ex-parte ad interim injunction on 2 February 2011, making it returnable on 4 March 2011. The defendant-appellant, though aware of the hearing date and having even served a caveat, did not appear on that date. Instead, on legal advice, he had preferred an appeal from order before the High Court challenging the ex-parte order. On 4 March 2011, in the absence of the defendant, the trial court made the ad interim order absolute. The defendant's subsequent appeal became infructuous as the order had been made absolute, and he lost the opportunity to contest the notice of motion. He then filed a notice of motion before the trial court to set aside the order dated 4 March 2011 and seek a hearing on merits, but that application was rejected on 22 June 2011. The defendant challenged that rejection in the present appeal. The appellant argued that he acted on the advice of his lawyer and thus could not appear, and that justice required an opportunity to be heard. The respondents contended that the defendant was served and knew the date, so his non-appearance was deliberate. The High Court acknowledged that both sides were factually correct but emphasized that parties often rely on their lawyers' advice. It noted the defendant's initial steps like filing a caveat showed a genuine interest in protecting his rights. The court observed that the possibility of injustice could not be ruled out if the defendant were barred from contesting the interim relief at the threshold. Consequently, in the interest of justice, the court allowed the appeal, set aside the impugned order, permitted the defendant to file a reply to the notice of motion within two weeks, and directed the trial court to hear and dispose of the notice of motion afresh on its own merits within four weeks thereafter, while keeping the ad interim injunction operative until the decision.
Headnote
A) Civil Procedure - Ex-parte Injunction Order - Setting Aside Ex-parte Order - Interest of Justice - The defendant, despite service, failed to appear on the returnable date due to filing an appeal on his advocate's advice; the trial court made the ex-parte ad interim injunction absolute and later refused to set aside that order. The High Court held that the circumstances indicated the defendant's intention to protect his rights and the possibility of injustice, therefore allowed the appeal, set aside the impugned order, permitted defendant to file reply and contest the notice of motion for interim injunction on merits, while keeping the ad interim relief operative till fresh decision. (Paras 5-6).
Issue of Consideration
Whether the trial court's order rejecting the defendant's application to set aside the ex-parte injunction was liable to be set aside in view of the circumstances showing that the defendant intended to defend but was prevented due to legal advice.
Final Decision
Appeal allowed. Impugned order dated 22 June 2011 set aside. Appellant-defendant permitted to file reply to the notice of motion within two weeks. Trial court directed to hear and dispose of the notice of motion afresh on merits within four weeks thereafter. Ad interim relief granted earlier to continue till decision on the notice of motion.
Law Points
- A court may set aside an ex-parte order in the interest of justice where the party's non-appearance was due to acting on legal advice and not deliberate neglect
- the paramount consideration is to prevent injustice.
