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IN THE HIGH COURT OF MADHYA PRADESH
J.P. BAJPAI, J.
Vidyaram – Appellant
Vs.
Kedarnath – Respondent
C. Revn. No. 106 of 1975 (G),
Decided on : 01-12-1978
1. By this revision, the applicant defendant seeks interference with that part or the order made by the trial Court which refuses to set aside the ex parte order made under Order 39, rule 1 of the Code of Civil Procedure.
Held: It was not disputed that the order impugned under Order 39 rule 1 CPC was made exparte, as the applicant defendant could not put in appearance. The suit was also simultaneously proceeded exparte. After considering the application for setting aside the exparte proceedings, the trial Court was satisfied that there was good cause for the absence of the defendant applicant and, accordingly, set aside the ex parte proceeding in the suit but refused to set aside the ex parte injunction order, for the reason that no new circumstance or ground has been disclosed for modifying the earlier order of temporary injunction already made.
2. It is apparent that the trial Court acted with material irregularity in refusing the request. The question of new circumstance being pointed out could arise only when the final order was made after hearing both parties. In the present case, the initial order had been, undisputedly, ex parte and therefore, the trial Court should have given an opportunity to the defendant to put up his case against the grant of temporary injunction in favour of the plaintiff.
3. The order impugned refusing to set aside the order granting temporary injunction is, therefore, set aside. It is directed that the trial Court shall decide the application under Order 39 rule 1 CPC afresh after giving due opportunity to the applicant to file reply affidavits and documents as may be felt necessary. Meanwhile, the temporary injunction already granted shall remain operative as an interim order till the disposal of the application under Order 39 rule 1 CPC afresh.
Revision allowed.
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