ORDER :

P.NAVEEN RAO, J.

Petitioner claims to be the owner of land admeasuring Acs.2.08 guntas in Sy.No.144 of Nanakramguda village, Serilingampally Mandal, Ranga Reddy district. Petitioner entered into Development Agreement-cum-General Power of Attorney, registered on 12.01.2015, in the Office of Joint Sub-Registrar, Ranga Reddy district for construction of complex in the above extent of land. Supplementary Agreement was entered, where under it was agreed that 60% would fall to the share of the developer and 40% to the owner. As per clause-5 of the Development Agreement, respondent agreed to pay Rs.4 crores as interest free refundable deposit. This amount should be refunded on successful completion of the project.

2. It appears, differences arose between the parties to the agreement, resulting in petitioner invoking remedy under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act, 1996’) by filing Arbitration O.P.No.62 of 2021 in the Court of XXIV Additional Chief Judge, City Civil Court, Hyderabad. Respondent filed Arbitration O.P.No.65 of 2021 in the Court of XXIV Additional Chief Judge, City Civil Court, Hyderabad, praying to grant injunction restraining the petitioner from alienating or encumbering built up area in the petition schedule ‘B’ property, fallen to the share of the petitioner herein, pending conclusion of the arbitration proceedings and to grant injunction restraining the petitioner from interfering with the peaceful possession of the petition schedule ‘A” property.

3. On 23.07.2021, while issuing urgent notice, returnable by 30.07.2021, by way of ad-interim injunction, the trial Court restrained the petitioner from making alienation of the property fell to its share till 30.07.2021. On 30.07.2021, the earlier interim order was extended till 11.08.2021 rejecting the memo filed by the petitioner for vacating the interim order observing that on a memo interim order cannot be vacated. Petitioner then filed I.A.No.73 of 2021 in Arbitration O.P.No.65 of 2021 praying the trial Court not to extend the interim order dated 30.07.2021 as the respondent failed to comply mandate of Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 (for short, ‘CPC’). The trial Court by order dated 27.09.2021 overruled the said objection and having found prima facie case and balance of convenience in favour of the respondent, dismissed the said I.A.

4. Heard Mr.Botla Venkateswara Rao representing Mr. M.V.Durga Prasad appearing for the petitioner and Mr. Bankatlal Mandhani learned counsel for the respondent.

5. Learned counsel for the petitioner submitted that in an application filed under Section 9 of the Act, 1996, Civil Court is bound by the provisions of Code of Civil Procedure in all its vigour and application and non-compliance thereof, vitiates the orders passed by the civil Court. According to the learned counsel, Order XXXIX Rule 3 of CPC mandates that if an ex parte ad-interim injunction is granted with a direction to the plaintiff to serve notice on the defendant, it is mandatory for the plaintiff to serve notice by enclosing copy of arbitration application and the documents filed by the respondent before the date fixed for hearing. Admittedly, respondent has not served all the documents relied upon by him, but only gave copy of arbitration application. Therefore, the mandate of Order XXXIX Rule 3 of CPC is not complied and on that ground alone the ex parte ad-interim injunction stands dissolved. The trial Court erred in overruling the objection.

6. He further submitted that trial Court erred in not going into the aspect of prima facie case and balance of convenience and merely noting that another arbitration application filed by the petitioner is pending, granted ex parte injunction depriving the right of the petitioner to enjoy his share of the property.

7. In support of his contention, learned counsel for petitioner placed reliance on the following decisions:

i) Decision of Hon’ble Supreme Court in Mahana