Delhi High Court

Shambhu Dutt Dogra vs Shakti Dogra & Ors. on 5 July, 2012

Author: Reva Khetrapal

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+            IA No.13139/2011 in CS(OS) 1163/2011


SHAMBHU DUTT DOGRA                                         ..... Plaintiff
                Through:                  Mr. Gaurav Gupta, Advocate.

                      versus


SHAKTI DOGRA & ORS                                     ..... Defendants
                 Through:                 Mr. Prabhjit Jauhar, Advocate.


%                              Date of Decision : July 05, 2012



CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

                               ORDER

: REVA KHETRAPAL, J.

1. This is an application filed by the defendant Nos.1 to 3 under

the provisions of Order XXXIX Rule 4 Code of Civil Procedure

seeking vacation of the ex parte order dated 13.05.2011 granted by

this Court in IA No.7816/2011 in the above suit.

2. By the aforesaid order dated May 13, 2011, the Court had

directed the parties to maintain status quo with regard to the title,

possession and construction of the property bearing No.D-13A, Hauz

Khas, New Delhi till the next date of hearing. The plaintiff was

directed to comply with the provisions of Order XXXIX Rule 3 CPC

within one week from the date of the passing of the order.

3. On August 18, 2011, the defendants filed the present

application for vacation of the aforesaid stay order, which was listed

on 19.08.2011, on which date notice in this application was directed

to be issued to the plaintiff/non-applicant through counsel. Reply has

since been filed by the plaintiff opposing the vacation of the stay

order granted by the Court.

4. The Court has heard the contentions of Mr. Gaurav Gupta, the

learned counsel for the plaintiff and Mr. Prabhjit Jauhar, the learned

counsel for the applicants/defendant Nos.1 to 3.

5. The defendants/applicants, in the application, allege that the

plaintiff has been able to procure an ex parte order in his favour qua

the suit premises by concealing material facts which, if the same had

been brought to the notice of the Court, the order dated 13.05.2011

would not have been passed. It is alleged that the plaintiff has falsely

averred that late Shri Sohan Lal, father of the plaintiff and the

defendant Nos.1 and 3 and father-in-law of defendant No.2 died

intestate. It is stated that it was in fact in the knowledge of the

plaintiff that late Shri Sohan Lal, who died on 21.12.2008, much prior

to his death had executed a Will dated 09.02.1994, which was duly

registered with the Sub-Registrar of Assurances on the said date as

Document No.775 in Additional Book No.3, Volume No.74 on pages

1 to 3. By virtue of the said registered Will, the plaintiff Shri

Shambhu Dutt and the defendant No.3 Smt. Pushpa Sharma had been

excluded by the testator, late Shri Sohan Lal from any share in the

estate of the testator and the suit premises bequeathed in favour of his

two sons, namely, Shri Shakti Dogra, the defendant No.1 and late

Shri Ravinder Dutt Dogra, husband of the defendant No.2. It is

submitted that in case the plaintiff had disclosed the factum of the

execution of the duly registered Will of late Shri Sohan Lal in favour

of the defendant No.1 and late husband of the defendant No.2, there

would have been no occasion for this Court to pass the order dated

13.05.2011 against the defendants. The restraint order having been

obtained by concealment of material facts was thus liable to be

vacated with heavy costs.

6. It is next contended that the interim order dated 13.05.2011 is

liable to be vacated also on the ground of non-compliance of the

provisions of Order XXXIX Rule 3 CPC by the plaintiff. In the

present case, vide order dated 13.05.2011, the plaintiff was granted

one week's time to comply with the provisions of Order XXXIX Rule

3 CPC, which required the plaintiff to intimate the defendants with

regard to the passing of the restraint order along with a set of the

plaint, applications and other documents on which the plaintiff relied

by registered post/speed post within one week from the date of the

passing of the order and to file within the prescribed period of time

an affidavit stating that the copies aforesaid had been so delivered or

sent. However, in the present case, no notice was either received by

the defendants or dispatched by the plaintiff or his counsel intimating

the defendants with regard to the passing of the restraint order dated

13.05.2011. The defendants had inspected the Court file and no

affidavit had been filed by the plaintiff nor any postal receipts or

intimation letter had been placed on record to show that the

provisions of Order XXXIX Rule 3 CPC had been complied with by

the plaintiff.

7. The defendants/applicants assert that till date they have not

received any notice or intimation from the plaintiff or his counsel

intimating them about the restraint order dated 13.05.2011 and the

said order is, therefore, liable to be vacated on this ground alone. The

defendants were not aware of the passing of the order dated

13.05.2011 till 14.07.2011, i.e., when defendant No.3 received

summons from the Court. Thus, the defendants have been prejudiced

by the non-intimation of the ad interim injunction order and non-

compliance of the provisions of Order XXXIX Rule 3 CPC whereby

the defendants were precluded from seeking vacation of the ex parte

ad interim order operating against them for more than two months

from the passing of the said order. The defendant Nos.1 and

2/applicants allege that till date they have not been served with the

summons in the suit, but came to know about the same from the

defendant No.3. Thus, the prayer made in the present application for

vacation of the interim injunction ought to be granted. The

defendants/applicants in this context relied upon the judgment of the

Supreme court in A. Venkatasubbiah Naidu vs. S. Chellappan, AIR

2000 SC 3032 and the judgment of a learned Single Bench of this

Court in the case of Moserbaer India Ltd. vs. Modern Cinema, 2010

IV AD (DELHI) 812.

8. The defendants/applicants also seek vacation of the interim

injunction order on the ground that the suit is even otherwise liable to

be rejected under the provisions of Order VII Rule 11 CPC in view of

the fact that the suit property has been grossly undervalued by the

plaintiff who has not paid the ad valorem Court fees in respect of the

suit property.

9. In reply to the aforesaid application, the plaintiff/non-applicant

submitted that no Will had been executed by late Shri Sohan Lal as

alleged or at all and that the signature on the so-called Will of late

Shri Sohan Lal is a totally forged signature. The plaintiff had an

extremely congenial relationship with his father and had made great

sacrifices for the family and as such there was no question of his

being excluded from the Will of his father late Shri Sohan Lal. The

Will was a forged and fabricated document prepared with a malafide

intention of misappropriating the rightful share of the plaintiff. As

regards the valuation of the suit property, the plaintiff/non-applicant

submitted that there was nothing on record to suggest that the suit

property had been undervalued by the plaintiff and the plaintiff/non-

applicant was ready to make up the deficiency in Court fees, if found

to be deficient by the Court. On the aspect of non-compliance of the

requirements of Order XXXIX Rule 3 CPC, it was submitted that the

plaintiff had fully complied with the requirements of Order XXXIX

Rule 3 CPC by filing the process fee/registered cover for issuance of

the notice the very next day in the Registry and it was the job of the

concerned official in the Registry to do the needful and the plaintiff

had nothing to do in the case, once steps had been taken by the

plaintiff.

10. From the aforesaid, this Court is of the opinion that there can

be no manner of doubt that the plaintiff/non-applicant failed to

comply with the requirements of Order XXXIX Rule 3 CPC. The

said provision reads as under:-

"3. Before granting injunction, Court to direct notice to opposite party.- 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 an 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."

11. There is not even an assertion by the plaintiff that after

obtaining an ex parte ad interim injunction against the defendants, the

plaintiff delivered to the defendants/applicants or sent to them by

registered post within one week a copy of the application for

injunction together with a copy of the affidavit filed in support of the

application, a copy of the plaint and copies of the documents on

which the plaintiff relied upon. There is also no assertion that the

plaintiff/non-applicant within one week of the day on which the ad

interim injunction was granted to the plaintiff filed an affidavit stating

that the copies aforesaid had been delivered or sent to the defendants.

On the contrary, there is a clear admission by the plaintiff that only

process fee and registered covers were filed in the Registry and

nothing else was sent or filed besides these. The filing of process fee

and registered covers in this Court is for service of summons/notice

upon the defendants and though a requirement of law is not sufficient

in itself, if the plaintiff wants to avail of the benefits of an ex parte ad

interim injunction order, which, as delineated at length hereinabove,

is an exception to the ordinary rule that injunction ought not to be

granted ex parte, there is no escape from complying with the

mandatory requirements of Order XXXIX Rule 3 CPC and that too

within the stipulated period.

12. That the provisions of Order XXXIX Rule 3 CPC are of a

mandatory nature has been emphasized by the Supreme Court in the

case of A. Venkatasubbiah Naidu (supra). In the said case, the

Supreme Court went so far as to lay down that an order granting ex

parte ad interim injunction order can be deemed to contain the

requirements set out in Clauses (a) and (b) of the proviso to Rule 3 of

Order XXXIX CPC by implication even if they are not stated in so

many words. It was further laid down that if a party, in whose favour

an order was passed ex parte, fails to comply with the duties which he

has to perform as required by the proviso to Rule 3 of Order XXXIX

CPC, he must take the risk. Non-compliance with such requisites on

his part cannot be allowed to go without any consequence and to

enable him to have only the advantage of it. The consequence of the

party, who secured the order, for not complying with the duties he is

required to perform is that he cannot be allowed to take advantage of

such order if the order is not obeyed by the other party. A disobedient

beneficiary of an order cannot be heard to complain against any

disobedience alleged against another party. The logic behind this

apparently is that the plaintiff who obtains ex parte ad interim

injunction order should, at the earliest point in time, and at any rate

not later than the time granted to him by the Court, deliver to the

party in the manner prescribed by Rule 3A of Order XXXIX CPC all

the documents on the basis of which such injunction was granted in

his favour and against the opposite party. This is to enable the

opposite party if he so desires to approach the Court for vacation of

such ex parte ad interim injunction order granted against him and/or

to bring to the notice of the Court facts which may not have been

disclosed by the plaintiff to the Court at the time of the grant of the ex

parte injunction order.

13. The rationale behind the introduction of Rule 3 of Order

XXXIX of the Code has been lucidly discussed by the Supreme Court

in the case of Shiv Kumar Chadha vs. MCS, 1993 (3) SCC 161 as

under:-

"The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said "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". The proviso was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party being of the opinion that the subject of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of

following the requirement of Rule 3 the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authorities concerned to record reasons before exercising power vested in them. In respect of some of such non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side under exceptional circumstances. Such ex parte orders have far- reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle that if a statute requires a thing to be done in a particular manner it should be done in that manner or not all."

14. A learned Single Judge of this Court (Hon'ble Mr. Justice S.

Muralidhar) in a recent order passed by His Lordship in the case titled

AGI Logistics Inc & Anr. vs. Mr. Sher Jang Bhadhur & Anr., 2010

I AD (DELHI) 600 in paragraph 14 observed as under:-

"14. If the Court were to take a lenient view and not insist on strict compliance with the mandatory requirement of Order XXIX Rule 3, then it would be possible for most plaintiffs to continue to enjoy an ad interim ex parte stay in their favour for any length of time and plead genuine mistake by their counsel for non- compliance. Numerous suits accompanied by applications seeking urgent ex parte reliefs are filed in our courts everyday. The court, on a perusal of the documents filed before it, forms a prima facie view for grant of an ex parte ad interim injunction against the opposite party, even in the absence of the opposite party. The Court at that stage has no means of knowing what the version of the opposite party is. The court, therefore, makes such interim order both time bound and conditional. The condition is that there must be compliance with Order XXXIX Rule 3 CPC within the time specified by the court. Although Order XXXIX Rule 3(b) CPC requires the filing of an affidavit of compliance "on the day on which such injunction is granted or on the day immediately following that day", this Court has been granting a longer time accounting for the fact that the certified copy of the order passed by the court may not be available on the same day or even on the next date. However, there is no question of the plaintiff not being required to comply with the mandatory requirement of Order XXXIX Rule 3 CPC within the time granted by the Court. In the considered view of this Court, a strict compliance with the

mandatory requirement of this provision must be insisted and any laxity shown to parties might well defeat the very purpose for which such provision has been inserted."

15. The aforesaid decision rendered in the case of AGI Logistics

Inc (supra) was followed by another Bench of this Court in

Moserbaer India Ltd. (supra). In the said case, the Court expressed

full agreement with the view taken in the case of AGI Logistics Inc

(supra) and wholly endorsed the same. Much prior to these

decisions, in the case of S.B.L. Ltd. vs. Himalaya Drug Co., 1997 IV

AD (DELHI) 757, a Division Bench of this Court while considering

the scope and ambit of the provisions of Rule 3 of Order XXXIX of

the Code had made the following apposite observations:-

"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 favor 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. 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.

35. We may refer to several observations made by their Lordships of the Supreme Court in Shiv Kumar Chadha v. MCD, 1993 (3) SCC 161 = III (1993) DLT 275 (SC). Though the observations have been, made primarily on the obligation of the Court to record the reasons but in our opinion they equally apply to the obligation cast on the applicant by the proviso. The provisions are mandatory........................

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-parte ad interim injunction confiding 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 of the merits of the case leaving it open to the parties to have a hearing on the grant or otherwise on the order of injunction but bi- parte only. The applicant would be told that by this 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."

16. This Court is clearly bound by the aforesaid dicta laid down by

the Division Bench in the S.B.L. Ltd. case (supra). There is an

admission in the instant case by the plaintiff of his failure to comply

with the provisions contained in the proviso to Rule 3 of Order

XXXIX CPC after availing of the ex parte ad interim injunction order

in his favour. The Court, therefore, is left with no choice except to

vacate the ex parte order of injunction with the clarification that this

is being done without expressing any opinion on the merits of the

case leaving it open to the parties to have a hearing bi-parte on the

grant or otherwise of the order of injunction. Clearly, the

defendants/applicants have been deprived by the misconduct/lapse of

the plaintiff of having an early hearing on merits. The ex parte order