TILAK RAJ Vs. JAGDISH LAL

JUDGEMENT

(1.) The short question requiring consideration in this case at this stage of the proceedings is as to whether the plaintiff has complied with the provisions of Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') and if not to what effect? The plaintiff in the present case has filed a suit for partition and permanent injunction. Alongwith the plaint, the plaintiff also filed an application under Order XXXIX Rules 1 & 2 read with Section 151 Civil Procedure Code for grant of an ex-parte ad-interim injunction. On the above said application, which came up for hearing before this Court on 12.4.96 the following order was passed :

(2.) On 9.7.96 the learned Counsel for defendants 1, 2 & 5 Mr. N.N. Aggarwal submitted before this Court that as the plaintiff has not complied with the provisions of Order XXXIX Rule 3, Civil Procedure Code in terms of order dated 12.4.96, the ex parte interim order dated the 12th April, 1996 deserved to be vacated forthwith due to the above default on the part of the plaintiff. The learned Counsel for the above said defendants placed reliance on a decision of this Court in case M/s Marbal Udyog Ltd. v. M/s P & O Indian Agencies(P) Ltd. reported as 1995 III AD(Delhi) 812. The learned Counsel for the plaintiff on the other hand submitted that there was no default on the part of the plaintiff though there was some delay in complying with the provisions of Order XXXIX Rule 3 Civil Procedure Code and the learned Counsel for the plaintiff made an oral prayer that the above said delay be condoned by this Court under Section 148 CPC.

(3.) I have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record. In the first place, in my opinion, on the basis of material on record, it would not be factually correct to say that the plaintiff has not complied with the provisions of Order XXXIX Rule 3 CPC. No doubt there has been some delay in complying with the above said provisions. In terms of order dated 12.4.96 the above said compliance was to be made within 24 hours from the date of the passing of the abovesaid order which is 12.4.96. However in the instant case the affidavit reporting compliance has been filed by the clerk of the Counsel on 20.4.96 and from the postal receipts on record it is apparent that the documents in question were sent per registered post on 17.4.96. The learned Counsel for the plaintiff submitted that he filed the requisite process fee on 12.4.96. 13th & 14th April, 1996 were general holidays due to being second Saturday of the month & Sunday and the process was issued on 15.4.96 which was served on the defendants on 16.4.96 and the documents were sent by registered post on 17.4.96.