Tilak Raj vs Jagdish Lal And Ors.
1996 Latest Caselaw 601 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) The short question requiring consideration in this case at this stage of the proceedings is as to whether the plaintiff has complied with the provisions of Order Xxxix Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') and if not to what effect? The plaintiff in the present case has filed a suit for partition and permanent injunction. Alongwith the plaint, the plaintiff also filed an application under Order Xxxix Rules 1 & 2 read with Section 151 Civil Procedure Code for grant of an ex-parte ad-interim injunction. On the above said application, which came up for hearing before this Court on 12.4.96 the following order was passed : "This is an application filed on behalf of the plaintiff under Order 39 Rules 1 & 2 read with Section 151 Civil Procedure Code for grant of ex parte order of injunction. I have gone through the averments made in the plaint, the contents of the application and have also heard the learned Counsel for the plaintiff. I am satisfied that if the relief of ex parte injunction is not granted to the plaintiff, the very purpose of filing the suit would stand defeated. It is, therefore, ordered that till the next date of hearing defendant No. 1 is restrained from selling or transferring the property bearing No. C-2/27, Ashok Vihar, Phase Ii, Delhi 52. The said defendant is further restrained from creating any third party interest in respect of the above said property till the next date of hearing. Plaintiff to comply with the provisions of Order 39 Rule 3 Civil Procedure Code within 24 hours. Re-list on 6.5.1996."

(2) On 9.7.96 the learned Counsel for defendants 1, 2 & 5 Mr. N.N. Aggarwal submitted before this Court that as the plaintiff has not complied with the provisions of Order Xxxix Rule 3, Civil Procedure Code in terms of order dated 12.4.96, the ex parte interim order dated the 12th April, 1996 deserved to be vacated forthwith due to the above default on the part of the plaintiff. The learned Counsel for the above said defendants placed reliance on a decision of this Court in case M/s Marbal Udyog Ltd. v. M/s P & O Indian Agencies(P) Ltd. reported as 1995 Iii AD(Delhi) 812. The learned Counsel for the plaintiff on the other hand submitted that there was no default on the part of the plaintiff though there was some delay in complying with the provisions of Order Xxxix Rule 3 Civil Procedure Code and the learned Counsel for the plaintiff made an oral prayer that the above said delay be condoned by this Court under Section 148 CPC.

(3) I have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record. In the first place, in my opinion, on the basis of material on record, it would not be factually correct to say that the plaintiff has not complied with the provisions of Order Xxxix Rule 3 CPC. No doubt there has been some delay in complying with the above said provisions. In terms of order dated 12.4.96 the above said compliance was to be made within 24 hours from the date of the passing of the above said order which is 12.4.96. However in the instant case the affidavit reporting compliance has been filed by the clerk of the Counsel on 20.4.96 and from the postal receipts on record it is apparent that the documents in question were sent per registered post on 17.4.96. The learned Counsel for the plaintiff submitted that he filed the requisite process fee on 12.4.96. 13th & 14th April, 1996 were general holidays due to being second Saturday of the month & Sunday and the process was issued on 15.4.96 which was served on the defendants on 16.4.96 and the documents were sent by registered post on 17.4.96.

(4) No doubt in terms of order dated 12.4.96 the compliance was to be reported within 24 hours. But in the facts and circumstances, as explained by the learned Counsel for the plaintiff, the correctness of which is not disputed even by the learned Counsel for the above said defendants, the time for reporting compliance, on an oral prayer made by the learned Counsel for the plaintiff, is enlarged upto 20.4.96 i.e. the date on which the affidavit reporting compliance of the above said provisions has been filed on behalf of the plaintiff.

(5) As regards the case M/s Marbal Udyog Ltd. v. M/s P & O Indian Agencies (P) Ltd. reported as 1995 Iii AD(Delhi) 812, relied upon by the learned Counsel for the defendants, the same, in my opinion, is distinguishable and in no way helps the cause of the above said defendants. In the above said case there was no compliance of the provisions of Order Xxxix Rule 3 Civil Procedure Code and the plaintiff in that case though got an ex-parte order in his favour on 28.2.65, yet neither cared to comply with the provisions of Order Xxxix Rule 3 Civil Procedure Code nor cared to appear and due to the above defaults, my learned Colleague Mr. Justice Davinder Gupta on 15.5.95 vacated the ex parte order of injunction dated the 28th February, 1995. In the present case the facts are entirely different. The plaintiff, as already stated, has complied with the provisions of Order Xxxix Rule 3 Civil Procedure Code and has also satisfactorily explained the delay. Moreover no prejudice has been caused to the defendants. In view of the above discussion, in my opinion, there is no force in the objection taken by the learned Counsel for the above said defendants on 9.7.96 during the hearing of the case and consequently the same is rejected.