SARDAR PRATAP SINGH Vs. S BASANTH SINGH

JUDGEMENT

(1.) THIS appeal is filed assailing the correctness of the order dated 6-72004 passed by the learned II Additional Senior Civil Judge, Warangal, in Memos vide SR. Nos. 1568 and 2133 of 2004 in LA. No. 285 of 2004 in O. S. No. 135 of 2004.

(2.) THE appellants herein filed the above suit for declaration, partition of movable and immovable properties and for permanent injunction. They also filed LA. No. 285 of 2004 seeking injunction restraining the respondents not to alienate the suit schedule property. The lower court by order dated 9-4-2004, granted ad interim exparte injunction in favour of the appellants herein subject to compliance of the provisions of Order XXXIX Rule 3 CPC. On service of the notices, respondents 5 and 6 filed a Memo in SR. No. 1568 of 2004 and respondents 1 and 2 also filed another Memo in SR. No. 2133 of 2004 for vacating the said ex parte injunction order on the ground that the copies of plaint documents have not been enclosed and therefore, the appellants failed to comply with the mandatory requirements of Order xxxix Rule 3 CPC. To verify the genuineness of the contentions of the above respondents, the lower Court opened the returned registered unserved cover in the Court Hall and found copy of the plaint, petition and affidavit in LA. No. 285 of 2004 and five documents alone in it. In view of the failure of complying with the mandatory requirements of order XXXIX Rule 3 CPC by the appellants, the lower Court passed an order dated 6-7-2004 vacating the ad interim ex parte injunction granted in favour of the appellants. Aggrieved by the same, this appeal is preferred.

(3.) LEARNED Counsel for the appellants contends that under Section 27 of the General Clauses Act, once the appellants/plaintiffs filed an affidavit about compliance of the same, the burden lies on the respondents to prove that all the necessary documents have not been furnished to them by producing the covers received by them. He further contends that the lower Court by simply opening the returned registered cover, came to the conclusion that the plaintiffs have not been complied with the mandatory requirements of Order XXXIX Rule 3 CPC, and vacated the injunction order granted by it, without making any enquiry and that unless such burden is discharged, the injunction order cannot be vacated. Therefore, the impugned order is liable to be set aside.