(Querist) 21 June 2022
This query is : Resolved
Dear experts A person filed a perpetual injunction suit against the defendants but defendants failed to file counter and written statement despite giving many opportunities also imposed costs also to file counter and WS and the court passed an exparte and posted for the plaintiff evidence. On the date of the plaintiff evidence when the plaintiff is about to give evidence he is about 70 years old having many ailments due to his age the deffendant counsel requested the court that without petition I am going to file set aside petition objecting to give the evidence of the plsintiff Is it a proper way?Even after passing the decree also defendants can file set aside petition. But why his hurry I don't know. Perhaps ,wants to delaying tactics. Is there any remedy or action on the defendant counsel or any other remedy? Kindly advice on this. Thanq.
(Expert) 23 June 2022
How can you take action on the defendant's counsel? If you have any right objection file it through your own counsel.
(Querist) 24 June 2022
Dear expert, You are absolutely right. But when there is a right for him to file set aside petition before or after the date of plaintiff's evidence even after passing of the decree also he can file set aside petition then what is for him object to lead the evidence of the plantiff when there is posted for the plaintiff's evidence long back. Is it not abuse of power?and the magistrate also take the evidence of the plaontiff as the set aside petition without allowed as it may be allowed?or not allowed? Counsel of the defendant intentionally wants to drag the matter as already taken time for filing the counter and WS and costs also imposed but not filed the counter and after giving many opportunities to file the counter and WS passed an exparte order and passed an exparte order aganist the defendant and posted for the plaintiff's evidence after a month and before and after the date he can file set aside petition. But when the date of plaintiff's who is about 70 + years old came for evednce the defendant counsel that too with out filing a set aside petition requesting the court kindly pass over the case to file set aside petition and the plaintiff's counsel objected and the magistrate given permission.that is objection of the plaintiff. I hope you understand the fate of the plaintiff Kindly advice on this for the speedy disposal. Thanq.
(Expert) 25 June 2022
The laws on writ of Injuction are governed by Specific Relief act and the CPC. Temporary or interlocutory Injunction can be granted or refused by the trial court, but the same should be based on well settled principles of law: 1. whether the petitioner has made pout prima facie case. 2. Whether balance of convenience is in petitioner's favor. 3. whether petitioner would suffer irreparable injury with the first condition as sine qua non atleast two conditions should be satisfied by the petitioner conjunctively and a mere proof of one of the three conditions does not entitle the petitioners to obtain the relief. In the present case, the defendant has failed to file WS as per the requirement of laws, and the writ of Interlocutory injunction can be granted ex parte.
(Expert) 28 June 2022
The plaintiff can file objection. However, law and its procedure favours the matter to be decided after proper trial hearing all the parties, no otherwise.