Item No. 108

Suppl List

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

CM(M) No.282/2022

Mohammad Yousuf Gojar Palal & Ors.

…Petitioner(s)

Through:

Mr. I. Sofi, Advocate.

Vs.

Raj Mohammad alias Rajwali Gojar & Ors. …Respondent(s)

Through:

CORAM:HON’BLE MR. JUSTICE SANJAY DHAR,JUDGE

ORDER(ORAL)

07.12.2022

1.

The petitioners have challenged order dated 30.11.2022 passed

by learned Principal District Judge, Bandipora, whereby the appeal

filed by respondent No.1 against order dated 27.05.2022 passed by

learned Munsiff, Bandipora, has been allowed and the order of the

learned Munsiff vacating the interim injunction has been set aside

whereafter the matter has been remanded to the trial court for hearing

the parties afresh on the question of grant of interim injunction.

2.

It appears that respondent No.1 had filed a suit against the

petitioners and respondents 2 to 5 for partition and permanent

injunction. The subject matter of the suit was the landed property

falling under Khasra No.1915 (04 kanals) and 2918/1841 (05 kanals)

situated at Malangam Bandipora. Upon presentation of the suit and

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after hearing the counsel for the plaintiff, the learned trial court passed

an exparte order dated 21.12.2021, whereby parties were directed to

maintain status quo on spot with respect to the suit property. It seems

that a direction was also issued by the learned trial court to the

plaintiff to comply with the requirements of Order 39 Rule 3 of the

Code of Civil Procedure. On the next date of hearing i.e. on

26.02.2012, the petitioners/defendants filed an application for

vacation of exparte interim order and also filed their written

statement.

3.

The learned trial court, vide its order dated 27.05.2022, vacated

the exparte interim order by holding that the plaintiff/respondent No.1

has not complied with the provisions contained in Order 39 Rule 3 of

CPC, inasmuch as he has not supplied the plaint, documents and the

affidavit to the defendants.

4.

The aforesaid order came to be challenged by the

plaintiff/respondent No.1 herein by way of an appeal before the

learned Principal District Judge, Bandipora, who, vide the impugned

order, has allowed the appeal, set aside the order passed by the learned

trial court and directed the trial court to hear the parties afresh on the

question of grant of interim injunction and decide the application on

merits.

5.

Heard learned counsel for the petitioners and perused the

record.

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6.

It is contended by learned counsel for the petitioners that the

impugned order passed by the learned District Judge is not in

accordance with law as the provisions contained in Order 39 Rule 3

CPC are mandatory, as has been held by the Supreme Court in the

case of Shiv Kumar Chadda vs. Municipal Corporation of Delhi,

(1993) 3 SCC 161.

7.

If we have a look at the record annexed with the petition, it is

revealed that after the passing of interim exparte order dated

21.12.2021, the defendants caused their appearance on the next date

of hearing i.e. on 29.12.2021 and on that very date, they filed an

application for vacation of exparte interim order. The defendants also

filed their written statement, meaning thereby that by that time, they

had obtained the copies of the plaint and other relevant documents

that had enabled them to file their written statement and the

application for vacation of exparte interim order.

8.

From the above, it is clear that copies of the plaint and

documents had been served upon the defendants along with the

summons issued by the trial court. Even if it is assumed that the

plaintiff did not serve copies of the plaint and documents upon the

defendants, yet fact of the matter remains that the defendants had

received these documents which had enabled them to file their written

statement. Thus, no prejudice was caused to the defendants by