Mrs. Palagiri Vinaya Devi vs Mr.B Vijaya Narayana Reddy And 118 ...
2022 Latest Caselaw 6757 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

             C.R.P.Nos.2590 and 2591 of 2022

COMMON ORDER:

     These Civil Revision Petitions are filed under Article

227 of the Constitution of India, assailing the docket order

dated 15.11.2022 in IA Nos.2008 and 2009 of 2022 in OS

No.469 of 2022 on the file of the II Additional Chief Judge,

City Civil Court, Hyderabad respectively. Accordingly, both

the civil revision petitions are disposed of through this

common order.


     2.    The petitioners/plaintiffs have filed the original

suit for partition and separate possession of their share

against the respondents 1 to 119 in respect of suit

schedule 'A' to 'T' properties. Along with the original suit,

they have filed these two Interlocutory Applications.

I.A.No.2008 of 2022 is filed under Order-39 Rules-1 and 2

of the Civil Procedure Code, 1908 (for short 'CPC') to

restrain the respondents/defendants from alienating the

suit schedule 'A' to 'T' properties or creating any third party

interest thereof. Whereas I.A.No.2009 of 2022 is filed to

AVR,J CRP Nos.2590 & 2591 of 2022

restrain the respondents/defendants from changing the

nature of the schedule A to T properties, as per the

schedule of property mentioned in the plaint.

3. Upon consideration of the material available on

record and the submissions made by the learned counsel

for the petitioners, the learned II Additional Chief Judge,

City Civil Court, Hyderabad has granted ex parte ad-

interim injunction on 12.10.2022 as prayed for restraining

the respondents from alienating A to T schedule properties

excluding L, P, Q schedule properties till 15.11.2022 and

restraining them from changing the nature of the same till

15.11.2022.

4. As per the order impugned, dated 15.11.2022,

the mandatory requirement under Order-39 Rule-3 (a) of

CPC was complied by sending copy of the affidavit filed in

support of the application, but the copy of plaint, copy of

the documents on which the applicant relied were not sent

and the mandatory requirement under Order 39 Rule (a) (ii)

and (iii) was not complied with. As such upon hearing

some of the respondents, as the mandatory requirement of

AVR,J CRP Nos.2590 & 2591 of 2022

Order-39 Rule-3 (a) and (b) of CPC is not complied with,

the ex parte injunction order dated 12.10.2022 has been

vacated without expressing any opinion on the merits of

the case holding that both the parties have right to contest

the matter by canvassing their contentions in the future

course. The petition filed by the revision petitioners for

extension of injunction order was also dismissed.

5. Feeling aggrieved by the impugned orders, these

civil revision petitions are filed by the petitioners/plaintiffs

alleging that the orders impugned are contrary to law, the

trial Court failed to appreciate the circumstances and

erroneously dismissed the applications on the ground of

non-compliance of order-39 Rule 3(a) of CPC. In all there

are 119 respondents and in fact at the time of filing of the

suit itself, Office has taken objection for filing 119 sets of

documents for each and every respondent/defendant. At

that time, a memo was filed by the petitioners explaining

voluminous record running into 2,580 pages and obtained

permission to serve the copies on all the counsels

appearing for the defendants physically instead of service

AVR,J CRP Nos.2590 & 2591 of 2022

on the defendants. Thereafter, the trial Court on

appreciation of the submissions made and the documents

available granted ad-interim injunction order till

15.11.2022 and it would be difficult for the petitioners to

send such voluminous documents to all the defendants, as

such the learned judge of the trial Court is not justified in

vacating the ex parte orders granted on 12.10.2022.

6. Heard the learned counsel for the revision

petitioners/plaintiffs, the learned counsel for the

respondents/defendants 1 to 3 and 119, the leaned

counsel for the respondent No.4 and the learned counsel

for respondent No.23. The submissions made on either

side have received due consideration of this Court.

7. The admitted or undisputed facts are that the

plaintiffs have filed the original suit in O.S.No.469 of 2022

for partition and separate possession of their share in the

suit schedule A to T properties. Along with the original

suit, the petitioners/plaintiffs have filed two Interlocutory

Applications in I.A.Nos.2008 and 2009 of 2022 to restrain

the respondents from alienating the suit schedule

AVR,J CRP Nos.2590 & 2591 of 2022

properties or creating any third party interest and not to

change the nature of properties respectively. The trial

Court upon considering the urgency expressed granted ex

parte temporary injunction order dispensing with the

notice under Order-39 Rule-3 of CPC. However, the

petitioners/plaintiffs failed to comply with the mandatory

requirement of Order-39 Rule 3 (a) and (b) of C.P.C. till

15.11.2022, thereby the trial Court has vacated the interim

order dated 12.10.2022 without expressing any opinion on

merits of the case holding that compliance of Order-39

Rule 3 (a) and (b) of CPC is mandatory and the Court has

no power to extend the interim injunction.

8. The learned counsel for the revision petitioners

strenuously contends that in all there are 119 respondents

/defendants and that there is voluminous record running

into 2,580 pages, as such when the Office has taken

objection at the time of registering the suit, the petitioners/

plaintiffs have obtained permission from the Chief Judge,

City Civil Court, Hyderabad and they were permitted to

furnish copies of documents to the learned counsel for the

AVR,J CRP Nos.2590 & 2591 of 2022

defendants, instead of parties, but the trial Court has

erroneously vacated the order dated 12.10.2022. It is

further argued by the learned senior counsel for the

petitioners that the petitioners have sent copy of the

affidavit filed in support of the application to all the

respondents in compliance with the provisions of Order-39

Rule-3 (a) and (b) of CPC and this fact was not taken into

consideration by the learned judge of the trial Court and

the order impugned is liable to be set aside. The learned

Senior Counsel has relied upon the following decisions:

i) Exide Industries Ltd. Vs. Exide Corporation, USA and others1;

ii) Naturepro Biocare INC and others Vs. Natureoma Herbal Pvt. Ltd. and others2;

iii) Nat Organic Chemicals Industries Vs. B.L.

Industries3;

iv) SSA International Limited Vs. Paras Sales Corporation and others4;

v) Himalaya Drug Co. Vs. S.B.L. Ltd.5.

MANU/DE/1374/2001

MANU/OR/0435/2012

MANU/DE/0096/1988

MANU/DE/0808/2004

1996 SCC Online Del 464

AVR,J CRP Nos.2590 & 2591 of 2022

9. Per contra, the learned counsel appearing for

the respondents 1 to 3 and 119 would submit that: i) the

civil revision petitions are not maintainable against the

orders impugned and they are only appealable orders; ii)

the learned Chief Judge, City Civil Court, Hyderabad

cannot pass any such orders and the memo relied upon by

the revision petitioners is only filed before the learned Chief

Judge, City Civil Court, Hyderabad, at the time of

numbering the suit and it was made over to the learned II

Additional Chief Judge, City Civil Court, Hyderabad. As

such, any compliance or time requesting for compliance

has to be filed only before the learned II Additional Chief

Judge, City Civil Court and the said memo filed before the

Chief Judge at the time of registration of the suit is not

helpful to the petitioners to prove the compliance of

mandatory requirement under Order 39 Rule 3 (a) and (b)

of CPC; iii) the compliance of Order-39 Rule-3 (a) and (b) of

CPC is mandatory in nature, mere sending copy of affidavit

by registered post does not amount compliance; and iv)

there is no infirmity in the orders impugned, the learned

judge of the trial Court has rightly exercised jurisdiction

AVR,J CRP Nos.2590 & 2591 of 2022

and vacated the ex parte order dated 12.10.2022 both in IA

Nos.2008 and 2009 of 2022.

10. The learned counsel for the respondents 1 to 3

and 119 would further submit that law does not recognize

any partial compliance or substantial compliance and that

the entire material as contemplated under Order-39 Rule-3

(a) (i) to (iii) of CPC i.e., copy of the affidavit filed in support

of the application, copy of the plaint and copies of

documents on which the applicant relies have to be sent or

delivered as required under Order 39 Rule 3 (b) of C.P.C. to

all the respondents and shall file proof to that effect before

the trial Court immediately on the date on which such

injunction is granted or on the day immediately following

that day with an affidavit stating that the copies of

aforesaid documents have been delivered or sent.

11. The learned counsel for the respondent No.4

has adopted the arguments submitted by Sri A. Venkatesh,

learned counsel for the respondent Nos.1 to 3 and 119. The

learned counsel for respondent No.23 also made

submissions on similar lines and further submitted that

AVR,J CRP Nos.2590 & 2591 of 2022

the consequence of non-compliance with the requirement

enumerated in clause (a) and (b) of Rule-3 of Order-39 CPC

are that the party cannot be allowed to take advantage of

such injunction orders and the aggrieved party is only

entitled to prefer an appeal and that the civil revision

petitions are not maintainable.

12. The learned counsel for the respondent Nos.1 to

3 and 119 also have relied on the principles laid in the

following decisions:

i) Shiv Kumar Chadha and others Vs. Municipal Corporation of Delhi and others6 (paras 9, 33 and 34);

ii) S.B.L. Ltd. Vs. Himalaya Drug Co.7 [Delhi High Court order dated 15.07.1997 in FAO (OS) No.301 of 1996] (para-34);

iii) Karni Adivamma and others Vs. Karada Chenchu Naidu8;

     iv)    Pasmala    Anjaiah      Chary           Vs.      T.
            Satyanrayana9 [(DB) paras 7 & 8];

     v)     Hari Chand Vs. Panchayat Mohalla Soodan10

(P&H High Court: order dt.03.08.2018 in CR No.8999 of 2017 (O&M) (paras 14 & 20);

(1993) 3 SCC 161

AIR 1998 Delhi 126

MANU/AP/0740/1999

MANU/AP/3576/2013

MANU/PH/2088/2018

AVR,J CRP Nos.2590 & 2591 of 2022

vi) Ved Prakash Shrma Vs. Lachmi Chand Sharma11 (APHC: Order dated 21.07.1999 in CRP No.331 of 1998).

13. The leaned counsel for the respondent No.23 relied on the principles laid in the following decisions:

i) A. Venkatasubbaiah Naidu Vs. S. Chellappan and others12;

ii) Ashwani Pan Products Pvt. Ltd. Vs. Krishna Traders13 [CS (OS) No.284 of 2012 (Delhi HC];

iii) Agi Logistics Inc and another Vs. Sher Jang Bhadhur & another14;

iv) Tamilselvi Vs. Pandiyan Educational Board15 (CRP No.1716 of 1995 Madras High Court);

v) Interlink Services (P) Ltd., Vs. S.P. Bangera16;

vi) V. Devasahyam Vs. D. Sahayadoss17 (order dated 08.02.2002 in CRP No.4015 of 2001 of Madras High Court);

vii) Nikesh Vs. Malathi Bai and others18 (Order dated 09.08.1996 in CRP No.4048 of 1991 of A.P. High Court);

viii) Shiv Kumar Chadha's case (6th supra);

ix) Techno Mechanical (P) Ltd., R.R. etc. and another Vs. Democratic Labour Union etc.,19 (order dated 18.10.1996 in CRP No.2005 of 1995 & batch, Madras High Court);

MANU/DE/0626/2000

AIR 2000 SC 3032

MANU/DE/0866/2012

(2009) 163 DLT 137

MANU/TN/0659

1997 (40) DRJ 299

MANU/TN/0014/202

MANU/AP/0559/1996

1997-2-L.W.243

AVR,J CRP Nos.2590 & 2591 of 2022

x) Dasari Laxmi Vs. Bejjenki Sathi Reddy20 (APHC: order dated 21.10.2014 in CRP No.76 of 2014);

xi) Ved Prakash Sharma's case (11th supra);

xii) Shambhu Dutt Dogra Vs. Shakti Dogro (Delhi High Court: Order dated 05.07.2012 in IA No.13139 of 2011 in CS (OS) No.1163 of 2011);

xiii) Hari Chand's case (10th supra);

        xiv)    S.B.L. Ltd.'s case (7th supra);

        xv)     Virudhnagar     Hindu    Nadargal    Dharma

Paribalana Sabai and others Vs. Tuticorin Educational Society and others (Order dt: 03.10.2019 in Civil Appeal No.7764 of 2019 of Supreme Court);

xvi) R. Munniraj and others Vs. T.D.

Venkatesappa and others (Order dated 15.03.2018 in CRP (PD) No.925 of 2018 of Madras High Court).

14. I have given my anxious consideration to the

ratio laid in the above decisions cited and relied by the

learned counsel for the petitioners and the respondents.

15. Be it stated that when an ex parte injunction is

granted the petitioners have to strictly comply with the

proviso to Order-39 Rule-3 (a) and (b) of CPC. Thus, the

party obtaining the injunction is required to deliver the

MANU/AP/1633/2014

AVR,J CRP Nos.2590 & 2591 of 2022

opposite party or to send him by registered post

immediately after the order granting injunction has been

made a copy of the application for injunction together with

i) copy of the affidavit filed in support of the application; ii)

copy of plaint; and iii) copies of documents on which the

application relies on and to file on the day on which the

injunction is granted or on the day immediately following

that day an affidavit stating that copies aforesaid have

been so delivered or sent.

16. Admittedly, in the instant case, copy of plaint

and copies of documents on which the applications are

relying have not been sent to the respondents. It is the

case of petitioners that these are in all 119 respondents,

voluminous documents running into 2,580 pages, it was

not possible for them to send a copy of the plaint and all

the documents running into 2,580 pages to all the

respondents/defendants and the petitioners have obtained

permission from the learned Chief Judge, City Civil Court,

Hyderabad.

AVR,J CRP Nos.2590 & 2591 of 2022

17. Perused the memo filed by the petitioners

wherein the learned Chief Judge has dispensed with the

filing of the said documents. But it was only filed at the

time of registration of the suit, when the Office has taken

objection that the required number of sets of document,

copies of plaint and affidavit were not filed. Thereafter, the

original suit was numbered and made over to the learned II

Additional Chief Judge, City Civil Court, Hyderabad, who

passed ex parte order, dated 12.10.2022 and subsequent

thereto, no such permission was obtained from the learned

II Additional Chief Judge, City Civil Court, Hyderabad.

18. It is pertinent to mention that, it is must that

on the day on which injunction is granted or on the day

immediately following that day an affidavit stating that all

the documents mentioned in proviso to Rule (3)(a) (i) to (iii)

of Order-39 of CPC are sent to the respondents by

registered post and there is no question of any substantial

compliance or the court dispensing with the sending of

such documents considering the request, if any made by

the petitioners does not arise. Thus, whenever temporary

AVR,J CRP Nos.2590 & 2591 of 2022

injunction is ordered dispensing with the notice in

exceptional circumstances the aforesaid requirement is

mandatory. In this context, I may refer to the relevant

authoritative pronouncement of Hon'ble Supreme Court

and this Court and Delhi High Court for better

appreciation.

19. A Division Bench of this Court in Pasmala

Anjaiah Chary's case (supra) relying on the principles laid

in Shiv Kumar Chadha's case (supra) held at para-8 as

under:

"8. Thus, from a reading of the aforesaid judgment of the Hon'ble Supreme Court, it is clear that ordinarily the interim relief should not be granted without serving any notice on other side, but in exceptional circumstances, if the interim relief is required to be granted without serving any notice, the aforesaid requirement is a must. The legislature thought it fit that the court must be satisfied with exigency of the facts for grant of an ex parte interim order, and such satisfaction must be recorded to inform any one including adversary as to why ex parte ad interim relief is granted. In our view, in judicial field exercise of arbitrary action cannot at all be tolerated. If any authority does not act in terms of provisions of law then such act and omission yield a situation of arbitrariness. We, therefore, set aside the judgment and order of the learned single Judge. We request His Lordship to consider the prayer for interim relief afresh, after hearing the parties in this case, at an early date. Accordingly, the Writ Appeal is disposed. Miscellaneous petitions, if any, pending shall also stand closed. No order as to costs."

AVR,J CRP Nos.2590 & 2591 of 2022

20. A Division Bench of Delhi High Court in S.B.L.

Ltd.'s case (supra) relying on the principles laid by the

Hon'ble Apex Court in Shiv Kumar Chadha's case (supra)

held in para-36 as under:

"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 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-part 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."

21. I have given my anxious consideration to the

principles laid in the decisions relied by the learned

counsel for the revision petitioners. In my considered

opinion, the ratio laid by the Apex Court in Shiv Kumar

Chadha's case (supra) was correctly followed by a Division

Bench of this Court in Pasmala Anjaiah Chary's case

(supra) holding that ordinarily the interim relief should not

be granted without service of notice on the other side, in

AVR,J CRP Nos.2590 & 2591 of 2022

exceptional cases if the interim relief is required to be

granted without service of notice, the compliance of proviso

to Rule-3 of Order-39 of CPC is mandatory. Similarly, a

Division Bench of Delhi High Court in S.B.L. Ltd.'s case

(supra) relying on the principles laid in Shiva Kumar

Chadha's case (supra), dealt with the consequences and

the procedure in case non-compliance of proviso to Rule 3

of Order 39 C.P.C.

22. Therefore, in view of the authoritative

pronouncement of the Hon'ble Supreme Court and a

Division Bench of this Court and the Division Bench of

Delhi High Court as discussed in the preceeding

paragraphs as to the mandatory nature of compliance of

the proviso to Order 39 Rule 3 CPC in case whenever

injunction order is granted dispensing with the notice, I do

not find any irregularity or infirmity in the order impugned.

Accordingly, in view of non-compliance of mandatory

requirements under Rule-3 proviso to Order 39 of CPC, the

learned II Additional Chief Judge, City Civil Court,

Hyderabad, has rightly vacated the interim order dated

AVR,J CRP Nos.2590 & 2591 of 2022

12.10.2022 passed in IA Nos.2008 of 2022 and 2009 of

2022 without expressing any opinion on merits of the case

holding that both the parties have right to contest the

petition by canvassing the respective contentions in future

course. As such, the order impugned does not warrant any

interference by this Court and it is sustained.

23. In the result, the Civil Revision Petition

Nos.2590 and 2591 of 2022 are dismissed confirming the

order impugned dated 15.11.2022 in I.A. Nos.2008 and

2009 of 2022 in OS No.469 of 2022 respectively on the file

of the II Additional Chief Judge, City Civil Court,

Hyderabad, in its entirety. However, in the circumstances

of the case, both the parties shall bear their respective

costs.

As a sequel, miscellaneous applications, if any

pending in these civil revision petitions, shall stand closed.

_________________________________ A. VENKATESHWARA REDDY, J.

Date: 13.12.2022 Isn