Mandatory nature of Order XXXIX Rule 3 CPC and the consequences of non-compliance.

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 prov