The mandatory nature of Order 39 Rule 3 CPC and the requirement for the applicant to comply with its provisions, including providing proof of serving or sending documents to the opposite party.

( 1 ) ALONG with the suit an application was filed by the plaintiff under Order 39 Rules 1 and 2 C. P. C. praying for ex-parte order in mandatory form directing the defendant No. 1 to shift the goods from Bombay to I. C. D. New Delhi and directing defendant No. 3 not to auction the plaintiffs goods stucked in the container. After hearing learned counsel for the plaintiff, an order was made on 28th February, 1995 directing the defendants that till next date the plaintiff s goods be not sold. Plaintiff was directed to comply with the provisions of Order 39 Rules 3 C. P. C. within two days. Notice was directed to be issued for 6th March, 1995. On 6th March, 1993 service report was still awaited. Learned counsel for the plaintiff stated that dasti notices could not be collected earlier and were collected on the same day. Fresh notices were directed to be issued for 20th March, 1995. On 20th March, 1995, Mr. O. P. Gaggar, appeared on behalf of defendant No. 1 while service report on defendants 2 and 3 was still awaited. On 8th May, 1995. Mr. Rajiv Nanda put in appearance on behalf of defendant No. 3 and took preliminary objection, without filing any reply to the miscellaneous application that injunction deserves to be vacated on the ground that there has been no compliance of provisions of Order 39 Rule 3 C. P. C. On request of learned counsel for the plaintiff, the case was adjourned to 15th May, 1995. On 15th May, 1995, learned counsel for defendant No. 3 relied upon the decision of Supreme Court in Shiv Kumar Chadha vs. M. C. D. and others 1993 (3) S. C. C. 161 and contended that due to non compliance of the mandatory provisions of Order 39 Rule 3 C. P. C. , without going into the merits of the case, injunction deserves to be vacated. Short adjournment was prayed for by learned counsel for the plaintiff. The matter was adjourned to 17th May, 1995, on which date none appeared for the plaintiff and the case was directed to be taken up today. Today also learned counsel for the plaintiff has not put in appearance.

( 2 ) ORDER 39 Rule 3 C. P. C. enjoins upon the applicant 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 a copy of the affidavit filed in support of the application; a copy of the plaint; and copies of documents on which the applicant relies and 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. This requirement the applicant is supposed to comply with in such case where the Court proposes to grant injunction without giving a show cause notice to the opposite party. In the instant case, specific order was made on 28th February, 1995, while granting exparte order of injunction without notice to the opposite party, calling upon the plaintiff to comply with the requirements of Order 39 Rule 3 C. P. C and the Court s order, the plaintiff ought to have, within two days of the passing of the order filed an affidavit in court stating that copies of the plaint, documents annexed with plaint application and -affidavit have been duly served upon the defendants or sent to them by registered Post immediately after the grant of the-order of injunction, which was not done post immediately after the grant of the order of injunction, which was not done.

( 3 ) IN Shiv Kumar Chadha (Supra) Supreme Court held that Rule 3 of Order 39 of the Code is mandatory in character. It was observed that the proviso to Rule 3 of Order 39 C. P. C. attracts the principle that if a statue requires a thing to be done - in a particular manner, it should be done in that manner or not all. The order passed on 28th February. 1995 was to operate only till next date of hearing. The plaintiff till date has not been able to satisfy the court as to the compliance of the order and