Case Note & Summary
The appellant, Shantinath, was the plaintiff in O.S.No.306/2007 pending before the Senior Civil Judge and JMFC, Indi. He filed an interlocutory application I.A.No.XVIII under Order XXXIX Rule 2-A of the Code of Civil Procedure, 1908, alleging that the respondents had disobeyed an injunction order passed in his favor. The trial court, by order dated 11.06.2015, dismissed the application for default, presumably because the plaintiff or his counsel was absent. Aggrieved by this dismissal, the plaintiff filed the present miscellaneous first appeal under Order XLIII Rule 1(r) CPC. The High Court of Karnataka at Kalaburagi, presided over by Dr. Justice H.B. Prabhakara Sastry, heard the appeal. The appellant argued that the trial court did not provide him with a reasonable opportunity to present his case before dismissing the application. The respondents, represented by Sri Ameet Kumar Deshpande, opposed the appeal. The court examined the record and found that the trial court had not recorded any reasons for dismissing the application for default, nor did it appear that the plaintiff was given a final opportunity. The High Court held that the dismissal without affording sufficient hearing violated principles of natural justice. Consequently, the appeal was allowed, the impugned order dated 11.06.2015 was set aside, and I.A.No.XVIII was restored to the file of the trial court for fresh disposal in accordance with law. The court directed the trial court to dispose of the application expeditiously, preferably within three months from the date of receipt of the order. No order as to costs.
Headnote
A) Civil Procedure Code - Order XXXIX Rule 2-A - Restoration of Dismissed Application - The plaintiff filed an application under Order XXXIX Rule 2-A CPC alleging disobedience of injunction order - The trial court dismissed the application for default on the date of hearing - The High Court held that the dismissal without giving sufficient opportunity to the plaintiff to present his case was improper - The impugned order was set aside and the application was restored to file - Held that the plaintiff must be given a fair hearing before any adverse order is passed (Paras 1-10).
Issue of Consideration
Whether the trial court was justified in dismissing the plaintiff's application under Order XXXIX Rule 2-A of CPC for default without providing sufficient opportunity to the plaintiff to be heard.
Final Decision
The appeal is allowed. The impugned order dated 11.06.2015 passed by the Senior Civil Judge and JMFC, Indi, in O.S.No.306/2007 on I.A.No.XVIII is set aside. I.A.No.XVIII is restored to the file of the trial court. The trial court is directed to dispose of the application expeditiously, preferably within three months from the date of receipt of the order. No order as to costs.
Law Points
- Order XXXIX Rule 2-A CPC
- Restoration of dismissed application
- Sufficient opportunity of hearing
- Natural justice
