HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE P. SWAROOP REDDY C.M.A. NO. 746 OF 2007 Between: G. Jagadeeshappa S/o G. Nagappa and four others ………….APPELLANTS AND Dr. A. Narayan Goud S/o a. Krishna Goud and 12 others ………….RESPONDENTS JUDGMENT : (Per Hon'ble Sri Justice Ghulam Mohammed) This Civil Miscellaneous Appeal is directed against the Order dated 7.8.2007 passed in I.A.No. 289 of 2007 in I.A.No. 279 of 2007 in O.S.No. 34 of 2007 passed by the II Additional District Judge, Mahaboobnagar. Appellants are the defendants and respondents are the plaintiffs in O.S.No. 34 of 2007. Plaintiffs filed the suit for recovery of an amount of Rs. 36,45,825/-. They filed I.A.279 of 2007 under Order 39 Rule 1 and 2 CPC and the Court below allowed the I.A granting ad interim injunction in their favour. Aggrieved by the same, defendants filed I.A.No. 289 of 2007 under Order 39 Rule 4 read with Section 151 CPC to vacate the ad interim injunction granted on 3.7.2007 in I.A.No. 279 of 2007 on the ground of non compliance of Order 39 Rule 3 CPC and the same was dismissed by the Court below with the following observation: “Since the respondents, who are plaintiffs in the suit have not sent envelopes containing the plaint, injunction petition affidavit, etc, merely on the ground that the third petitioner said to be opened the envelope and not found the material papers in the envelope, the injunction Order granted by this Court earlier on 3.7.2007 in I.A.No. 279 of 2007 cannot be vacated. However, the parties are at liberty to dispose of the matter as early as possible. I find no merits in the present petition and I feel, it is liable for dismissal. In the result, the petition is dismissed.” Aggrieved by the same, the present Civil Miscellaneous Appeal is filed. The learned counsel appearing for the appellants vehemently contended that the learned Judge ought to have vacated the order inasmuch as there is non- compliance of Order 39 Rule 3 CPC and the respondents have failed to send the documents properly as the envelope sent by them does not contain the material papers filed by them when one of the appellants opened the envelope. Heard the learned counsel appearing for the appellants and also perused the material made available on record. As seen from the record, the envelopes were addressed to the appellants to their respective places except to the third appellant who is residing at Hyderabad. It is stated that the third appellant only opened the envelope and the said envelope does not contain the material papers filed by them and it contains only plaint, injunction petition and affidavit. The Court below granted ex-parte ad interim injunction on 3.7.2007 subject to compliance of Order 39 Rule 3 CPC. For ready reference Order 39 Rule 3 CPC reads as under: “Order XXXIX Rule 3 CPC: 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, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that 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 applicant 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.” A plain reading of the above provision clearly shows that where the Court proposes to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant to deliver to the opposite party a copy of the application for injunction together with a copy of the affidavit filed in support of the application, a copy of the plaint, copies of documents on which the applicant relies. But here in this particular case, when the third appellant opened the envelope the said envelope did not contain the material papers filed by respondents in support of their case. Therefore, the order passed by the Court below suffers from infirmity and is liable to be set aside. Accordingly, the Civil Miscellaneous appeal is allowed and the order passed by the Court below in I.A.No. 289 of 2007 is set aside. Since the ad interim injunction granted by the Court below on 3.7.2007 in I.A.N. 279 of 2007 is still subsisting, the Court below is directed to dispose of the application as expeditiously as possible preferably, within a period of two weeks from the date of receipt of a copy of this order after giving an opportunity to both the parties. The Court below is also directed to see that Order XXXIX Rule 3 CPC is complied with. There shall be no order as to costs. ________________________ GHULAM MOHAMMED,J _______________________ P. SWAROOP REDDY,J DATE: 20.10.2010 KA ... 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