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Gheesa Lal and ors. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1081 of 1980
Judge
Reported inAIR1981Raj65
ActsConstitution of India - Article 226(1) and 226(3)
AppellantGheesa Lal and ors.
RespondentState of Rajasthan and ors.
Appellant Advocate G.L. Pareek, Adv.
Respondent Advocate P. Kuhad, Adv.
Excerpt:
.....the case in court. in case 14 days are likely to expire, and the office has failed to list the case, counsel for the petitioner can bring it to the notice of the court and get it listed immediately by obtaining instructions of the..........in the following terms:hon'ble agrawal j., mr. g.l. pareek for the petitioner. issue notice of the stay application. in the meanwhile, the respondents are restrained from dispossessing the petitioner from the land of the petitioner in khasra no. 539, if he has not already been dispossessed till today'. 2. this order was passed ex parte without service of notice or giving of copies of the petition to the respondents.3. respondent no. 2 filed this application for vacation of the stay order and furnished a copy of it to the petitioner. copy was furnished on 8th september, 1980. application was filed in the court on 9th september, 1980. according to the computation two weeks time has expired on 23rd september, 1980.4. mr. pareek's submission is that in spite of expiry of two weeks time, stay.....
Judgment:
ORDER

G.M. Lodha, J.

1. The respondent No. 2 has filed this application under Article 226(3) of the Constitution of India. It has been prayed that ad interim stay order dated 15th July, 1980 passed by this Court be vacated. The aforesaid order dated 15-7-1980 was in the following terms:

Hon'ble Agrawal J.,

Mr. G.L. Pareek for the petitioner.

Issue notice of the stay application. In the meanwhile, the respondents are restrained from dispossessing the petitioner from the land of the petitioner in Khasra No. 539, if he has not already been dispossessed till today'.

2. This order was passed ex parte without service of notice or giving of copies of the petition to the respondents.

3. Respondent No. 2 filed this application for vacation of the stay order and furnished a copy of it to the petitioner. Copy was furnished on 8th September, 1980. Application was filed in the court on 9th September, 1980. According to the computation two weeks time has expired on 23rd September, 1980.

4. Mr. Pareek's submission is that in spite of expiry of two weeks time, stay order will not stand vacated because firstly, there was no stay order against respondent No. 2 and secondly, this application was not listed within two weeks on account of mistake of the office, for which a party should not make suffer. I have carefully considered the above submission of Mr. Pareek. The language and wording of Article 226(3) admits of no ambiguity or doubt. Sub-clause (3) of Article 226 of the Constitution reads as under :

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under Clause (1), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order, and;

(b) giving such party an opportunity of being heard,makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open, and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.'

5. It is obvious that the intention of keeping the provisions for automatic vacation of such order, where no order is passed, within 2 weeks, is that the party who obtains an ex parte stay order should not be allowed to abuse or misuse the process of the Court by proceeding in a leisurely manner. In the normal course, stay orders and injunctions are to be issued after hearing both the parties, but in exceptional cases of urgency, when irreparable loss to a party is likely to be caused, the Court adopts extraordinary procdure of granting ad interim relief. A party who obtains ex parte order, behind the back of the respondents, should be vigilant to get it affirmed, after permitting an opportunity to the other side of hearing. In case, after obtaining ex parte stay order petitioner fails to discharge his duty and prolongs ex parte stay order, either by non-service of the respondents, or by not taking active steps to get the case listed in court, he can do so at his own peril.

6. It is true that the office of this Court should immediately take steps for listing this application, in the court and in view of the constitutional mandate, and the serious consequences which may ensure, the petitioner as well as thecourt's office, both must get the matter considered by the Court immediately. However, if that is not done, the petitioner cannot escape the liability by pointing out that office bus failed to list the case in court. This is so, because when the petitioner has successfully obtained an ex parte stay order, it is he who should take the steps for getting the case listed on the very next day or within the statutory period of 2 weeks and having not done so, he cannot be allowed to prolong the stay order by delay on the part of the office. In case 14 days are likely to expire, and the office has failed to list the case, counsel for the petitioner can bring it to the notice of the court and get it listed immediately by obtaining instructions of the Court. I am, therefore, firmly of the opinion that this constitutional mandate admits of no exceptions and therefore, even without passing any order on the application, ex parte ad interim stay order would stand vacated on the expiry of 14 days i.e. two weeks from the date of filing of the application or giving of the copies whichever is later. In the instant case, order dated 15th July, 1980 should stand vacated automatically on 23rd September, 1980.

7. The contention of Mr. Parock that no stay order was passed against the respondent No. 2 fails to carry any conviction because the language of stay order nowhere admits of such Interpretation. Ad interim stay order has been passed against all the respondents and the respondent No. 2 is certainly one of them.

8. In spite of the automatic vacation of the stay order as mentioned above, I am not in agreement with the submissions made by the learned counsel for the respondent No. 2 that the stay application stands dismissed for ever. In my view though the ad interim stay order would stand vacated, slay application will be considered on merits whenever after service of all the parties, the same is listed for the same.


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