Cpc
Guest
(Querist) 02 November 2017
This query is : Resolved
In one suit, Plaintiff moved an application for Temporary Injunction at the time of filing of suit , few Defendants gave say. Many Defendants summons were not served at that point, after a brief argument. Hon. Court was pleased to pass order that "Temporary Injunction application will be heard after serving of all summons as there is no urgency in the matter"
There was a delay for few years for serving of summons (Reason better not specify here).
In mean time Plaintiff died her legal heirs were taken on record within the period of limitation in the suit. Plaint was amended legal heirs were taken on record.
Now Temporary Injunction application is on the name of deceased Plaintiff, Names were not taken on record in this application by Plaintiff legal heir.
Those defendants who gave say to Temporary Injunction failed to give written statement to the Plaint,
Some people have the habit to state in the say of Temporary injunction that it should be also considered as written Statement and they also give one Pursis to Hon. Court . Now those Defendant Adv have failed to do both neither wrote such thing in say nor gave Pursis ,
1) Now I feel that application for the temporary injunction is abated, Whether it is correct?
2) And whether rules of abatement which are applicable to suit are also applicable for such applications in the suit (restricted to application)?
3) When Temporary Injunction application abates (If abates as per my understanding ) then what is the legal status for say to Temporary Injunction, then what is the validity of such say in the suit .
4) Now the validity of Say to the temporary Injunction has become the center point of the case because other defendants failed to give WS nor say to Temporary Injunction.
5) I need clarification for Say to the temporary injunction in such situation and whether Hon. Court can discard say using 151 CPC as Temporary injunction application is abated or Say looses its whole relevance ? or any other legal interpretation in such situation?
(Please note this is not academic query, I need to take stand in this matter against Defendants Adv)
Dr J C Vashista
(Expert) 03 November 2017
What is basis for your inference for abatement of ad-interim injunction, which has neither been vacated nor judgment delivered, irrespective of the fact that the plaintiff has been substituted by her LRs?
Dr J C Vashista
(Expert) 03 November 2017
Reply by defendant(s) to the application u/o XXXIX Rules 1 & 2 CPC filed by plaintiff(for ad-interim injunction) is totally different to the written statement (main suit).
If written statement has not been filed by the defendant(s) within 30 days (or extendable to 90 days with condonation of delay application) the plaintiff is entitled for a decree u/o VIII Rule 10 CPC.
Guest
(Querist) 03 November 2017
Well previous Adv. of Plaintiff in Temporary injunction stated names of all parties and their address. Since the name of deceased Plaintiff is present the essential party that is present plaintiff is not there. Additionally, Temporary Injunction application is signed by deceased Plaintiff and required affidavit in support of temporary injunction too is signed by deceased Plaintiff. Under the circumstances, the present Plaintiff which is the necessary party for submitting the application is itself not present in the application of TI.
Another question which arose how Adv. can represent the application of the deceased person. When he represented person via suit /application or appeal then that person is required to be alive.
I felt under the circumstances the names of Legal representative should be taken on Temporary Injunction application. then only it will have validity.
But generally in suit or appeal we need to take name on record within 90 days, but regarding Temporary Injunction, I tried to search judgment but failed (I need to search hard to see similar case or refer professional books for Adv )
In such case, I preferred to move the application that Plaintiff does not want to press for Temporary Injunction and Hon. Court may please pass necessary orders on it and also discard say on Temporary Injunction, as without application say have no relevance only.
Situation is that at this point Suit is in final stage only ,
But I doubt I read one case in Bombay High Court that person gave to Say to TI and did not gave written statement and it was allowed as WS because both where identical Plaint and Applicaion of TI . This I read long back .
So getting that say discarded either by stating that TI applicaiton is abated or Plaintiff does not want to press for TI at this point and Hon. Court may please relevant order regarding both TI and Say to TI may be better option I felt. I don't want that Say to be alive.
This situation took place because professional misconduct of the previous adv of both sides , Rather Defendant Adv and its junior where themselves shocked when it was pointed out to them that Written statement is not present in suit .
The situation was that Doctor forgot to remove operation tool from belly before ending operation.
