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2004 DIGILAW 296 (HP)

S T. K. INTERNATIONAL LTD. v. HEM RAJ CHAUHAN

2004-10-29

A.K.GOEL

body2004
JUDGEMENT OMP No. 450 of 2004. Heard learned Counsel for he parties present 2. When OMP No. 450 of 2004 came up for consideration on 17.9.2004, this Court after having gone through the plaint and documents attached with it was satisfied that it was a fit case for passing an exparte ad-interim order. Accordingly, following exparte order was passed: "Accordingly subject to completion of pleadings in the main suit as well as in this application, and the defendants being heard m this OMP, by way or exparte ad-interim order it is ordered that defendants shall not in any manner cause any sort of obstruction m the miming of the hotel business by the plaintiffs, they will also not cause arty obstruct on to the ingress and egress either from the main entrance or from the rear entrance of the hotel in question, either themselves or through other members of the Union of which respondent No.9 m the Secretary. At the same time, defendants are also restrained and prohibited from m any manner causing damage to the property of the plaintiff and/or removing anything from hotel. They are further restrained from holding any demonstration or slogan shouting within the radius of 500 metres from the plaintiffs hotel. Notices win be made returnable for 20.10.2004, when the main suit has already been fixed Plaintiffs to comply with Order XXXIX Rule 3-A of the Code of Civil Procedure, as well as the provisions of High Court of Himachal! (Original Side) Rules, 1997. However, defendants will be free to apply for vacation/modification of this order, in case they so desire after filing their pleadings before the date fixed." 3. When this came up today and application had been argued for some time, it transpired that white complying with the provisions of Order XXXIX Rule 3 of the Code of Civil Procedure and of High Court of Himachal Pradesh (Original side) Rules, 1997), admittedly, and as detailed in paragraph 2 of the affidavit reporting compliance, plaintiffs had sent to the defendants copy of stay order alongwith necessary documents by registered post It has further averred in this affidavit compliance of the aforesaid provisions has been made in terms of the order dated 17 September, 2004. 4. For ready reference Order XXXIX Rule 39 Rule 3 is extracted herein below: "3. 4. For ready reference Order XXXIX Rule 39 Rule 3 is extracted herein below: "3. before granting injunction, Court to direct notice to opposite party,- The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. [Provided that when it is proposed to grant an injunction without notice of the application to the opposite party, the court shall record the reasons for its opinion r t hat the object of granting the injunction would be defeated by delay, and require the applicant- (a) to deliver to the opposite party, or to send to him by registered post; immediately after the order granting the injunction has been made, a copy of the application for injunction together with- (i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the application relies, and (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent]" 5. At this stage, learned Counsel for the plaintiffs submitted that law enjoins a duty upon his clients to supply to the opposite side or to send him by registered post immediately after grant of injunction a copy of the application for injunction together with a copy of affidavit in support of the application, copy of plaint only and not copies of documents on which the applicant relied. According to him, plaintiffs hi this case had not placed reliance on tie documents attached with the plaint but placed reliance on what is mentioned in OMP NO. 450 of 2004. He further submitted that no document was appended by the plaintiffs with this OMP. Therefore, there is no question of having sent these documents. 6. It is a matter of common knowledge that the proviso of Order XXXIX Rule 3 of the Code of Civil Procedure was added vide Central Act No. 104 of 1976 which came into force on and with effect from 1.2.1997. Therefore, there is no question of having sent these documents. 6. It is a matter of common knowledge that the proviso of Order XXXIX Rule 3 of the Code of Civil Procedure was added vide Central Act No. 104 of 1976 which came into force on and with effect from 1.2.1997. Purpose behind incorporating the proviso along with its sub-clauses (a) and (b) appears to be that the mater should be disposed of at the earliest after nearing the parties as also within the time frame prescribed under the Code of Civil Procedure Another object white incorporating this proviso appears to be, that the opposite party could know for what suit was filed against it and what are the documents being relied by the plaintiff. This seems to avoid unnecessary delay. 7.Submission of Shri Kuthiala that no document is either relied upon in the application i.e OMP No. 450 of 2004, as welt as was attached with it, is a plea urged only to be rejected. Reason being that Court had taken note of the documents attached with the plaint while passing the exparte ad-interim order on 17th September, 2004. Plea of Shri Kuthiala that plaintiff m the suit as well as applicant in an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure are two separate entities, is likewise without any meat And therefore, his clients were justified in not making the documents available to the defendants. This again is a plea raised simply to be noted being devoid of any merit. Question of plaintiff being applicant would only rise when the matter is being dealt with exparte, when application is filed by him for the grant for interim relief m a suit This is only maintainable from an applicant Prayer to adjourn the case, made at this stage is turned down. 8.As such this OMP is dismissed for the above reasons of non-compliance with the Courts order dated 17.9.2004, without having gone into the merits of the contentions urged by the teamed Counsel for the parties. Consequently, exparte ad-interim order dated 17th September, 2004 shall stand vacated forthwith. Ordered accordingly.