Ved Prakash Sharma vs Shri Lachmi Chand Sharma
1999 Latest Caselaw 553 Del

ORDER

Cyriac Joseph, J.

1. The petitioner in this revision petition is the defendant in the suit and the respondent is the plaintiff therein. The plaintiff filed a suit for permanent injunction restraining the defendant from dispossessing the plaintiff from the suit property. The plaintiff claimed to be the owner in possession of the suit property. The defendant filed written statement claiming title and possession over the suit property. However, the trial court passed a decree of perpetual injunction restraining the defendant from dispossessing the plaintiff from the suit property. The defendant filed an appeal in the Court of the Senior Civil Judge, Delhi on 18-11-1985 against the judgment and decree dated 30-9-1985 passed by Shri Z.S. Solanki, Civil Judge, Delhi. The plaintiff filed reply to the appeal on 26-2-1986. The appeal was adjourned from time to time for arguments. In the meanwhile the appellant/defendant moved an application dated 21-1-1989 under order 39 Rules 1 and 2 of the code of Civil procedure (for short called 'the code') praying that the respondent/plaintiff, his associates, attorneys, employees, servants, friends and relatives be restrained from parting with possession of the suit property and from raising any illegal and unauthorised construction without duly sanctioned plan from M.C.D. till the decision of the appeal on merits. On the said application the appellate court on 23.1.1989 passed the following order:-

"ORDER:

23.1.89

Case taken up today on application of appellant.

Present : Counsel for the appellant.

Heard. The respondent is directed to maintain status-quo in respect of possession and construction at site. Put up on the date fixed. Notice be issued to respondent on P.F.

sd/-

Addl. Senior Sub Judge

Delhi".

Thereafter on 2.12.1997 an application under Order 39 Rule 4 and Section 151 of the Code was moved on behalf of the plaintiff praying to vacate the exparte injunction order granted on 23.1.1989. The said application was filed along with the affidavits of S/Shri Wariyam Dass Khurana and Devinder Pal Singh who claimed to be power of attorney holders of Shri Ramesh Kumar and Shri Rakesh Kumar who in turn were attorneys appointed by Shri Ramesh Kumar sharma who was appointed attorney by the plaintiff Shri Lachmi Chand Sharma as his attorney. One of the grounds urged in the said application for vacating the ex parte injunction order was that the applicant in the injunction application had not complied with the provisions of Order 39 Rule 3 of Code. The defendant filed reply to the said application under Order 39 Rule 4 of the Code contending that the said application was not maintainable, that the plaintiff was aware of the injunction order from 23-1-1989 onwards, that several counsel had been appearing for the plaintiff after 23.1.1989 without raising any objection about the injunction order and that requisite notice was sent to the plaintiff along with the documents after the passing of the injunction order dated 23.1.1989. However, by order dated 30.3.1998 the learned Senior Civil Judge allowed the application under order 39 Rule 4 of the Code and vacated the interim order dated 23.1.1989. The learned Senior Civil Judge also dismissed the application of the defendant/appellant under Order 39, Rules 1 and 2 of the Code. The said order dated 30.3.1998 of the learned Senior Civil Judge is challenged in this revision petition.

2. In the application dated 2.12.1997 filed under Order 39 Rule 4 of the Code the plaintiff contended that the ex parte injunction order dated 23-1-1989 was liable to be set aside and vacated for non-compliance of the provisions of Order 39, Rule 3 of the Code. In support of the said contention the plaintiff made the following averments in paragraph (7) of the said application:-

"7. That it is submitted that the appellant never got the notice of the said application dated 21.1.89 issued and served upon the respondent and did not even get the ad interim injunction granted on 23.1.89 served upon the respondent. The appellant did not comply with the provision of Order 39, Rule 3 C.P.C. and did not send the copy of the said application along with the documents relied upon by him within 24 hours of the passing of the order to the respondent. The appellant having obtained the said order did not press the said application at any time and the said order of injunction was never referred to or extended in subsequent proceedings."

3. In the reply filed by the defendant it was stated that requisite notice was sent to the respondent along with the documents after the passing of the order dated 23.1.1989. The averments in paragraph 7 of the application were denied by the defendant. According to the defendant it was false that the appellant-defendant did not comply with the provisions of Order 39, Rule 3 of the Code as alleged.

4. Rule 3, of Order 39 of the Code reads thus:-

"3. The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party :

Provided that, where it is proposed to grant injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant -

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with -

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies; and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent."

Either in the reply to the application under Order 39 Rule 4 of the Code or in this revision petition, there is no clear averment to the effect that immediately after the order dated 23-1-1989 was made a copy of the application for injunction together with copies of the affidavits filed in support of the application was delivered to the opposite party or was sent to him by registered post. There is also no averment that on the day on which the ex parte interim order was granted or on the day immediately following that day an affidavit was filed by the applicant stating that copy of the applicant stating that copy of the application for injunction together with copies of the affidavits filed in support of the application had been so delivered or sent to the opposite party. All what is stated in the revision petition is that the petitioner did comply with the order passed on 23-1-1989 by filing process fees and court notice to the respondent was issued on the same day." Hence the allegation in the application under Order 39 Rule 4 of the Code that the defendant had not complied with the provisions of Order 39 Rule 3 of the Code is not specifically controvered. In fact learned counsel for the petitioner also practically conceded that there was no compliance with order 39 Rule 3 of the Code by the applicant in the application for injunction.

4A. In the reply to the application under Order 39 Rule 4 of the Code the defendant had questioned the locus standi of S/Shri Wariyam Dass Khurana and Devinder Pal Singh to move an application on behalf of the plaintiff under Order 39 Rule 4 of the Code since they were not parties to the appeal. It was contended that if S/Shri Wariyam Dass Khurana and Devinder Pal Singh had become the owners of the property they should have filed proper application for getting themselves imp leaded as additional parties or in the place of the plaintiff. The above contention was noted by the learned Senior Civil Judge in the impugned order dated 30-3-1998 but the question of maintainability of the application at the instance of S/shri Wariyam Dass Khurana and Devinder Pal Singh was not considered or decided by the learned Senior Civil Judge. Relying on the judgment of a Division Bench ;of this Court in S .B.L. Ltd. Vs. The Himalaya Drug Co., the learned Senior Civil Judge held that if the Court was satisfied about the non-compliance with the provisions contained in Order 39 Rule 3 of the Code, the Court could vacate the ex parte order. Apparently the learned Senior Civil Judge took the view that since the fact of non-compliance with the provisions contained in Order 39, Rule 3 of the Code was brought to his notice, he could take note of the said fact and pass appropriate orders, even though the application under Order 39 Rule 4 of the Code was filed by S/Shri Wariyam Dass Khurana and Devinder Pal Singh who were not parties to the appeal. The above view taken by the learned Senior Civil Judge is not assailed in the revision petition or by the learned counsel for the revision petitioner.

5. In S.B.L. Ltd. (supra) a Division Bench of this Court held that if the Court was satisfied of non-compliance by the applicant with the provisions contained in the proviso to Order 39 Rule 3 of the Code the Court would simply vacate the ex parte order of injunction without expressing any opinion on the merits of the case, leaving it open to the parties to have a hearing on the grant or otherwise of the order of injunction. For convenience paragraphs 34 and 36 of the judgment in the above case are extracted hereunder :-

"34. Looking to the scheme of Order 39, CPC it is clear that ordinarily an order of injunction may not be granted ex-parte. The opposite party must be noticed and heard before an injunction may be granted. Rule 3 carves out an exception in favour of granting an injunction without notice to the apposite party where it appears that the object of granting injunction would be defeated the delay. Conferment of this privilege on the party seeking an injunction is accompanied by an obligation cast on the Court to record reasons for its opinion and an obligation cast on the applicant to comply with the requirements of Clauses (a) and (b) of the proviso. Both the provisions are mandatory. The applicant gets an injunction without notice but subject to the condition of complying with Clauses (a) and ( b) above said.

xxxx xxxx xxxx

36. We are of the opinion that if the Court is satisfied of non-compliance by the applicant with the provisions contained in the proviso then on being so satisfied the Court which was persuaded to grant an ex-parte ad interim injunction confining in the applicant that having been shown indulgence by the Court he would comply with the requirements of the proviso, it would simply vacate the ex-parte order of injunction without expressing any opinion on the merits of the case leaving it open to the parties to have a hearing on the grant or otherwise of the order of injunction but bi-party only. The applicant would be told that by his conduct (mis-conduct - to be more appropriate) he has deprived the opponent of an opportunity of having an early or urgent hearing on merits and, therefore, the ex-parte order of injunction cannot be allowed, to operate any more."

As pointed out earlier, admittedly there was non-compliance by the applicant with the provisions contained in the proviso to Rule 3 of Order 39 of the Code. Hence in the light of the above judgment of the Division Bench the learned Senior Civil Judge was right in vacating the ex parte order dated 23-1-1989.

6. Learned counsel for the revision petitioner contended that while passing the ex parte order dated 23-1-1989 the Court had not directed the applicant to do the things mentioned in Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code and, therefore, the failure of the applicant-appellant to do those things cannot be a ground for vacating the ex parte order. It is true that in the order dated 23-1-1989 the Court had not recorded the reasons for its opinion that the object of granting the interim order would be defeated by the delay and the Court had also not issued a specific direction requiring the applicant to comply with the provisions of Order 39 Rule 3 of the Code. As pointed out by the Division Bench of this Court in the case of S.B.L. Ltd. (supra), ordinarily an order of injunction may not be granted ex parte. The notice should be issued to the opposite party and he must be heard before an injunction is granted. Rule 3 of Order 39 of the Code carves out an exception in favour of granting an injunction without notice to the opposite party where it appears that the object of granting injunction would be defeated by the delay. The said privilege conferred on a party to seek an ex parte injunction is accompanied by an obligation on the said party to comply with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code. Those requirements are mandatory. The applicant gets an injunction without notice to the opposite party but subject to the condition of complying with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code. Hence whether or not the Court issued a specific direction to the applicant to comply with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of the Order 39, the applicant is bound to comply with those requirements. If the applicant is exempted or absolved from complying with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of the Order 39 on the ground that the Court, while granting an ex parte injunction, omitted to require to the applicant to comply with those requirements, it will go against the scheme of Order 39 of the Code and will defeat the object of the statutory provisions. Hence, I reject the contention of the learned counsel for the revision petitioner that in the absence of a specific direction by the Court to comply with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code the applicant was not bound to comply with those requirements and the ex parte injunction order cannot be vacated for non-compliance with the said requirements.

7. As already pointed out, while passing the ex parte order dated 23-1-1989, the Court had not recorded the reasons for its opinion that the object of granting the injunction would be defeated by the delay and the Court had also not issued a specific direction to the applicant to comply with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code. Thus, the Order dated 23.1.1989 was not passed in accordance with the mandatory provisions of Rule 3 of Order 39 of the Code. To that extent the order dated 23.1.1989 was illegal and defective. The said illegality and defect arose out of the Court's omission to record the reasons for granting injunction without issuing notice to the opposite party and the omission to direct the applicant to comply with the requirements of clauses (a) and (b) of Rule 3 of Order 39. Such as omission cannot be pleaded as ground for the continuance of the illegal and defective order especially when the beneficiary of the said order failed to comply with the mandatory recruitments of clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code. This Court will not exercise the jurisdiction under Section 115 of the Code to permit the continuance of such an illegal and defective order for the benefit of the petitioner who did not comply with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code.

8. Learned counsel for the revision petitioner further contended that even if the ex order dated 23.1.1989 was liable to be vacated for non-compliance with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code, the application under Order 39 Rules 1 and 2 of the Code was not liable to be dismissed without considering it on merits and hearing the parties. According to the learned counsel for the revision petitioner, the learned Senior Civil Judge ought to have considered on merits the application under Order 39 Rules 1 and 2 after hearing the appellant and the respondent. It is not clear from the impugned order whether the learned counsel for the appellant and the respondent were allowed to argue on the merits of the application under Order 39 Rules 1 and 2. Learned counsel for the petitioner submitted that they were not allowed to argue on the merits of the said application for injunction. The learned Senior Civil Judge has not discussed the merits of the said application in the impugned order. He has only made a cryptic observation that the application does not call for any intervention at this stage. No reason is stated for dismissing the application under Order 39 Rules 1 and 2. Therefore, the learned counsel for the revision petitioner is right in his submission that the application under Order 39 Rules 1 and 2 was dismissed arbitrarily and without proper application of mind. In my view, by dismissing the application under Order 39 Rules 1 and 2 the learned Senior Civil Judge acted in the exercise of his jurisdiction illegally and which material irregularity.

9. In the light of the discussion above the revision petition is partly allowed. The impugned order dated 30-3-1998 is set aside to the extent it dismissed the application under Order 39 Rules 1 and 2 of the Code. The impugned order dated 30-3-1989 is upheld to the extent it vacated the order dated 23.1.1989. The learned Senior Civil Judge is directed to consider the application afresh under Order 39 Rules 1 and 2 and pass appropriate orders in accordance with law after hearing the applicant and the respondent. The interim order dated 3-4-1998 passed in CM 1290/98 stands vacated and the said application stands dismissed. The parties are directed to appear before the learned Senior Civil Judge, Delhi on 16th August, 1999 for further proceedings.

The revision petition is disposed of in the above terms. The parties are left to bear their own costs.