1999 Supreme(Del) 502

High Court Of Delhi
VED PRAKASH SHARMA - Appellant
Versus
LACHMI CHAND SHARMA - Respondent
Civil 331 of 1998
Decided On : 07/21/1999

Non-compliance with the requirements of Order 39 Rule 3 of the CPC renders an ex parte injunction order liable to be vacated.

Headnote:

INJUNCTION - EX PARTE - VACATION - NON-COMPLIANCE WITH ORDER 39 RULE 3 OF THE CODE OF CIVIL PROCEDURE - EFFECT - APPLICATION UNDER ORDER 39 RULES 1 AND 2 - DISMISSAL WITHOUT CONSIDERING MERITS - ILLEGALITY AND MATERIAL IRREGULARITY.

Fact of the Case:

The petitioner filed a revision petition challenging the order of the Senior Civil Judge, Delhi, which vacated an ex parte injunction order granted in favor of the defendant and dismissed the defendant's application for a permanent injunction. The plaintiff had filed a suit for permanent injunction restraining the defendant from dispossessing him from the suit property. The defendant filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (CPC) seeking an ex parte injunction to restrain the plaintiff from parting with possession of the suit property and from raising any illegal construction. The court granted the ex parte injunction without complying with the requirements of Order 39 Rule 3 of the CPC, which mandates the court to record reasons for granting an injunction without notice and to direct the applicant to comply with certain requirements. The plaintiff filed an application under Order 39 Rule 4 of the CPC to vacate the ex parte injunction order on the ground of non-compliance with Order 39 Rule 3. The Senior Civil Judge allowed the application and vacated the ex parte injunction order. The defendant filed a revision petition challenging the order of the Senior Civil Judge.

Finding of the Court:

The court held that the ex parte injunction order was liable to be vacated for non-compliance with the requirements of Order 39 Rule 3 of the CPC. The court also held that the Senior Civil Judge erred in dismissing the defendant's application under Order 39 Rules 1 and 2 without considering it on merits and hearing the parties. The court set aside the impugned order to the extent it dismissed the application under Order 39 Rules 1 and 2 and directed the Senior Civil Judge to consider the application afresh and pass appropriate orders in accordance with law.

Issues: 1. Whether the ex parte injunction order was liable to be vacated for non-compliance with the requirements of Order 39 Rule 3 of the CPC? 2. Whether the Senior Civil Judge erred in dismissing the defendant's application under Order 39 Rules 1 and 2 without considering it on merits and hearing the parties?

Ratio Decidendi: 1. The court held that the ex parte injunction order was liable to be vacated for non-compliance with the requirements of Order 39 Rule 3 of the CPC. The court relied on the judgment of a Division Bench of the Delhi High Court in S. B. L. Ltd. v. The Himalaya Drug Co., which held that if the court is satisfied of non-compliance by the applicant with the provisions contained in the proviso to Order 39 Rule 3 of the CPC, 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. 2. The court held that the Senior Civil Judge erred in dismissing the defendant's application under Order 39 Rules 1 and 2 without considering it on merits and hearing the parties. The court held that the Senior Civil Judge acted in the exercise of his jurisdiction illegally and with material irregularity by dismissing the application arbitrarily and without proper application of mind.

Final Decision: The court partly allowed the revision petition. The impugned order dated 30-3-1998 was set aside to the extent it dismissed the application under Order 39 Rules 1 and 2 of the CPC. The impugned order dated 30-3-1989 was upheld to the extent it vacated the order dated 23. 1. 1989. The learned Senior Civil Judge was 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.