The court upheld the discretion of the learned ADJ in granting notice rather than ex-parte relief, affirming that orders under Order XXXIX are discretionary and not subject to interference unless clear error exists.

JUDGMENT (Oral)

1. The impugned order, dated 4th April, 2022, passed by the learned Additional District Judge-01 ("the learned ADJ") has issued summons on CS 234/2022 and notice in the application filed in the said suit under Order XXXIX Rules 1 and 2 of the Code of Civil Procedures, 1908 (CPC), returnable on 19th July, 2022.

2. The petitioners are the plaintiffs, and the respondent is the defendant, in the said suit. The petitioners are aggrieved by the fact that the learned ADJ did not grant ex-parte ad interim injunction, as sought by the petitioner.

3. The suit relates to a property situated at H-17, Maharani Bagh, New Delhi. The plaintiffs are in possession of the first and second floors, whereas the defendant is in possession of a part of the ground floor of the suit property, comprising two bedrooms.

4. According to the averments in the plaint filed by the petitioners, the respondent had filed Suit 688/1969, before the learned Senior Sub-Judge, Delhi, against the petitioners and his parents, Salig Ram Seth and Bhagwati Devi Seth. In the said suit, the respondent contended that the suit property, though the self-acquired property of Salig Ram Seth, had been constructed out of joint family funds and that, on 1st April, 1968, an oral partition of the property had taken place, following which the parties were in possession of the properties which fell to their share under the oral partition. The suit was disposed of, vide order dated 17th October, 1969, on the basis of the following consent decree:

"That the partition effected between the parties to the suit in respect of joint Hindu Family property No. C-74 (old), 17-H (New), Maharani Bagh, New Delhi on 01.04.1968 and physical possession taken by the respective parties of their share is delineated in the plan annexed and agreement regarding payment of property taxes, income taxes, wealth taxes, etc. and also water and electricity charges is perfectly legal and binding on the parties; and plaintiffs are the exclusive owners with possession in equal shares as per the said petition of the portion shown in colours 'red' in the plan attached i.e. Ground Floor complete, right hand garage and servant room over it with lawns. And similarly it be held that defendant No. 1 is the owner with possession of portion shown in brown colour in the plan i.e. drawing-cum-dining kitchen verandah, latrine on 2nd floor and two bed rooms, verandah and bath on third floor over the garages together with the right of passage from the main entrance as well as in the back; and defendants No. 2 and 3 are owners with possession in equal shares of the portion shown in yellow colour in the plan attached i.e. first floor complement barsati floor complete, left hand garage and servant room over it together with the right of passage from the main entrance and use of stair cases for going on the floor and barsati, and portion in joint possession shown in green colour in the plan i.e. baths-cum-latrines, attached with garages, servant quarters, and also kitchen and verandah attached with the servant quarters over the garage and that each one of the parties is responsible for the payment of property taxes, income-taxes, wealth taxes, etc, and also water and electricity charges etc, for their respective shares be and the same Is hereby passed in favour of the plaintiff and against the defendant."

5. According to the petitioners, whose case is espoused by Mr. Jai Sahai Endlaw, learned