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Himachal Pradesh High Court · body

2025 DAILYLAW 4062 (HP)

Arvind Kumar v. Manoj Kumar

2025-12-09

Ajay Mohan Goel

body2025
JUDGMENT : AJAY MOHAN GOEL, J. 1. In terms of order dated 09.10.2025, Sh. Neel Kamal Sharma, learned counsel, had put in appearance for the respondents, but, today despite repeated calls, he has not put in appearance and as per the report of the Registry, he has also not filed the Power of Attorney, therefore, respondent No.1 is ordered to be proceeded against ex-parte. 2. By way of this petition, the petitioner has assailed judgment dated 21.09.2024, passed by the learned Appellate Court, in an appeal preferred by the respondent-defendant, in terms whereof, the appeal was allowed and order dated 01.12.2022, passed by the learned Senior Civil Judge Court No.1, Hamirpur, H.P., in an application filed under Order 39, Rule 2-A of the Civil Procedure Code was set aside. Learned counsel for the petitioner has argued that the judgment passed by the learned Appellate Court is not sustainable in the eyes of law for the reason that a perusal thereof would demonstrate that the learned Appellate Court has erred in not appreciating that as it was exercising Appellate Powers, therefore, it was bound to go into the legality of the order under challenge and not to act as the Court of first instance whether the respondents herein were liable to be punished for violating the interim order passed by the learned Trial Court or not. Learned counsel took the Court minutely through the judgment passed by the learned Appellate Court and submitted that there is no discussion therein qua the findings which were returned by the learned Trial Court while disposing of the application under Order 39 Rule 2-A and accordingly she submitted that the impugned judgment is per se bad in the eyes of law. 3. Having heard learned counsel for the petitioner and having perused the judgment passed by the learned Appellate Court as well as the order passed by the learned Trial Court, in terms whereof, it allowed the application filed under Order 39 Rule 2-A of the Civil Procedure Code, this Court concurs with the submissions made by the learned counsel. Learned Appellate Court while allowing the appeal and setting aside the order passed by the learned Trial Court has decided the case as if it was the Court of first instance and was deciding whether the defendant was guilty of violating the interim order passed by the Court or not. Learned Appellate Court while allowing the appeal and setting aside the order passed by the learned Trial Court has decided the case as if it was the Court of first instance and was deciding whether the defendant was guilty of violating the interim order passed by the Court or not. Learned Appellate Court erred in not appreciating that in its appellate capacity, it was to assess the legality of the order passed by the learned Trial Court, though, of course, in the course of assessing the legality of the said order, the Appellate Court had the jurisdiction to re-appreciate the evidence. However, herein, learned Appellate Court has appreciated the evidence as the Court of first instance and has heavily relied upon the application filed under Order 41, Rule 27 of the Civil Procedure Code while allowing the appeal without dwelling on the legality of the order which was under challenge before the said authority. This renders the judgment passed by the learned Appellate Court to be bad in law. As observed hereinabove also, learned Appellate Court while exercising the Appellate jurisdiction was required to assess the legality of the order under challenge by referring to the findings returned in the said order vis-à-vis the pleadings and evidence on record and in the absence of learned Appellate Court having done so, the impugned order cannot be sustained in the eyes of law. 4. Accordingly, this petition is allowed. The judgment dated 21.09.2024, passed by the learned Appellate Court in Civil Misc. Appeal No.05 of 2023, is set aside and the matter is remanded back to the learned Appellate Court to decide the appeal afresh in terms of the observations made by this Court. 5. Pending miscellaneous applications, if any, stand disposed of.