Exide Industries Ltd. vs Exide Corporation, Usa And Ors.
2001 Latest Caselaw 1699 Del

JUDGMENT

Vijender Jain, J.

1. This is an application filed by the defendant under Order 39 Rule 3 CPC. Mr. Lall, learned counsel for the defendants has contended that the non-applicant/plaintiff has not complied with the provision of Order 39 Rule 3. He has contended that it was mandatory on the part of the plaintiff to serve the defendants within the time stipulated by the Court, in view of specific order passed by this Court, while granting ex parte injunction order on 25.4.1997. Learned counsel for the defendants has contended that the provisions of Order 39 Rule 3 is not a mere formality but the same has to be construed as an obligation on the part of the parties and it is the duty of the Court to see that the compliance of Order 39 Rule 3 is made when an ex parte injunction order is granted by the Court. In support of his contention, learned counsel for the application/defendant has relied upon Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors. 50 (1993) DLT 492.

2. It is was further contended by Mr, Lall that in spite of opportunities granted by this Court affidavit of compliance in a proper manner has not been filed by the plaintiff. He has contended that although he has filed an application for vacation of stay on merit under Order 39 Rule 4 of the CPC but on the basis of non-compliance of Order 39 Rule 3 of the CPC, the ex parte injunction be vacated.

3. On the other hand, Mr. Nayar, learned counsel for the plaintiff has contended before me that compliance of serving the defendants was made within five days which was the time grated by this Court. It has been contended that on 30.4.1997 the plaintiff had sent by post all the documents as were required to be done under the provision of Order 39 Rule 3 to the defendants for their information and the constituted compliance within the premises of Order 39 Rule 3. He has further contended that Vakalatnama was filed on behalf of defendant No. 2 on 26.4.1997. He has also contended that an application for inspection was filed as early as on 24.4.1997 on behalf of defendant No. 2 even prior to filing of the Vakalatnama and grant of ex parte injunction order.

4. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. There is no quarrel to the proposition of law that provision of Rule 3 Order 39 are not directory. When a court grants an ex parte injunction, it is the other party which has to be informed at the earliest opportunity so as not to affect adversely the interest of the opposite party in view of grant of ex parte injunction. The Parliament in its wisdom has incorporated Rule 3 Order 39 of the CPC. Therefore, the compliance of aforesaid provision is not a mere formality but a mandatory provision which has to be observed by the parties and Court has to see its observance strictly. Now in the present case before me whether there is compliance or not? I have gone through minutely the postal receipts filed by the plaintiff on record, which are numbering 18, the date is 30.4.1997, the names of defendants have been mentioned in the postal receipts. Apart from the postal receipts, there is an acknowledgement receipt from defendant No. 1. Once the postal receipt of the Department of Posts as well as acknowledgement receipt of the defendant No. 1 is on record, it cannot be said that there was no substantial compliance with the provision Order 39 Rule 3, although the affidavit of compliance ought to have been filed by the plaintiff along with the postal receipts and acknowledgement card which was filed on 5.1.2001. Apart from delay in filing the affidavit, there was an inordinate delay in filing the postal receipts as well as acknowledgement receipt from defendant No. 1.

5. But it was for the defendant after order under Order 39 Rule 3 was made, to come to the Court at the earliest opportunity as defendant No. 2 had already filed an application for inspection on 25.4.1997 that injunction order granting ex parte, be vacated on account of non-compliance of Order 39 Rule 3. The application under Order 39 Rule 3 in this regard was filed on 11.1.2000. Another fact which has to be borne in mind is that application for vacating the ex parte injunction (bearing No. 3908/98) under Order 39 Rule 4 CPC, although was filed by the defendants in the year 1998, no such ground was taken that there was non-compliance by the plaintiff under Order 39 Rule 3. Another curious thing which emerges is that defendants have been so diligent that Vakalatnama has been filed on behalf of defendant No. 2 on 26.4.1997 and the application for inspection was dated 24.7.1997. As a matter of fact, it seems that defendants themselves were aware of the proceedings in the Court. No prejudice has been caused in any event to the defendants. There is no force in the application as I hold that compliance was done under Order 39 Rule 3 CPC by the plaintiff.

6. Dismissed.

Section 812/1997 & IAs. 3908/98, 2706/98 and 3643/97

List on 22.2.2002.

Interim order to continue.