IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.6061 of 2010 Between: Pudi Srinivas Kumar ..... PETITIONER AND Pudi Annapurna and 2 others .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.6061 of 2010 O R D E R: Heard both the counsel. The petitioner is the plaintiff who filed the suit in O.S.1237/2010 on the file of the III Addl.Junior Civil Judge, Visakhapatnam for grant of permanent injunction restraining the defendants therein who are the mother, sister and brother-in-law of the petitioner. The 1st respondent is the mother, 2nd respondent is the sister and 3rd respondent is the husband of the 2nd respondent. Pending the said suit, the petitioner herein filed an application for grant of temporary injunction in I.A.1274/2010 under Or.39 Rules 1 and 2 CPC restraining the defendants from interfering with the peaceful possession of the petition schedule property i.e. RCC slabbed building, consisting of cellar plus three floors, 24 rooms, covered by Door No.32-1-204 situated on the western side to the Bowdara Road, within the limits of Visakhapatnam Municipal Corporation, Visakhapatnam. It is stated that the schedule property originally belongs to the 1st defendant and the 1st defendant is said to have been executed a lease deed dated 09.08.2010 in favour of the petitioner and pursuant to the said lease deed, the petitioner is carrying on the business in the suit schedule property by running a Hotel by name Sri Ganesh. It is stated that thereafter, the 1st defendant transferred the said property by way of Gift Deed dated 14.10.2010 in favour of her daughter, the 2nd respondent herein and when the 2nd respondent started interfering with the peaceful possession and enjoyment of the said property, interfering with the leasehold rights, the petitioner filed the said suit and obtained an order of status quo on 20.10.2010. But he could not comply with the provisions of Or.39 Rule-3(a) CPC on the next day i.e. 21.10.2010, but he only complied with the provisions of Or.39 Rule-3(a) on 22.10.2010. It is stated that the said ad interim injunction granted on 20.10.2010 was extended by order dated 03.11.2010 up to 10.11.2010. On 11.11.2010 the Court below taken up the application filed by the petitioner in I.A.1350/2010 for extension of the interim order, and heard both the counsel appearing for the petitioner as well as the respondents and found that the petitioner has failed to comply with the provisions of Or.39 Rule-3(a) CPC immediately on the same day or on the next day of passing of ad interim injunction order dated 20.10.2010. The petitioner has filed an affidavit along with postal receipts only on 22.10.2010 which shows that the petitioner sent copies of the documents to the respondents on 22.10.2010 alone i.e. after 24 hours and declined to extend the injunction order and vacated the same for the failure of the petitioner to comply with the provisions of Or.39 Rule-3(a) CPC and accordingly dismissed the application filed for extension of the injunction order. Aggrieved by the same, this revision petition is filed under Sec.115 CPC contending that Or.39 Rule-3(a) CPC is not mandatory and the Court below having extended the injunction order granted on 20.10.2010 by order dated 03.11.2010, the non-compliance of the provisions of Or.39 Rule-3(a) CPC on the next day is not mandatory as the Court below, in fact extended the interim order when the defendants entered appearance on 03.11.2010 itself. On the other hand, the learned counsel for the respondents submits that Or.39 Rule-3(a) is mandatory and after obtaining the ad interim injunction under Or.39 Rules-1 and 2 CPC, the petitioner is bound to comply with the provisions of Or.39 Rule-3(a) CPC on the day on which the injunction order was granted or on the day immediately following the day by filing an affidavit stating that the copies of the application for the grant of injunction together with the affidavit filed in support of the application, copy of the pliant and copies of the documents on which the applicant relied on have been served on the respondents. It is stated that admittedly, the petitioner has not sent even on the next day of the grant of injunction and therefore, for non-compliance of the mandatory provisions, the Court below rightly dismissed I.A.1350/2010 which was filed for extension of the interim order passed in I.A.1274/2010. The learned counsel for the petitioner submitted that the application filed for extension of the injunction order alone is dismissed while kept pending the injunction application. The learned counsel for the respondents relied on a judgment of the Hon’ble Supreme Court in the case of A.Venkatasubbiah Naidu vs S.Chellappan and ors.[1] where the Hon’ble Supreme Court held in paragraph No.12 of the said judgment as under: “What would be the position if a Court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in clauses (a) and (b) Rule 3 of Order 39. In our view such an Order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party.” A careful perusal of the said order indicates that if the party in whose favour an order was passed ex parte fails to comply with the duties which he has to perform as required by the proviso to Clauses-(a) and (b) of Rule-3 of Order-39 CPC he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have the advantage of it. The consequence of the party, who secured the order, for not complying with the duties, he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party. I am of the opinion that the Hon’ble Supreme Court never stated about the injunction application either stands dismissed or automatically stands vacated. If the said ex parte order is disputed by the respondents, the petitioner cannot complain as he was at fault in sending the copy of the petition, affidavit, plaint and documents to the respondents. In the instant case, in fact, the injunction order was extended and only the extension application was dismissed, but the injunction application was never considered and disposed of. The learned counsel for the respondents submits that a learned Single Judge of this Court in the case of Nikesh vs Malathi Bai[2] held that the provisions of Or.39 Rule-3 are mandatory and for non-compliance of the provisions of Or.39 Rule-3(a) the injunction order is liable to be vacated. Whereas the learned counsel relied on the judgment of a learned Single Judge of the High Court of Jammu & Kashmir in the case of K.K.Puri and ors. Vs A.K.Puri and ors.[3] where the learned single Judge held that the non-compliance of the provisions of Or.39 Rule-3 are not mandatory, but are directory and any non-compliance thereof, though serious matter, does not invalidate an ex parte injunction. In view of the judgment of the Hon’ble Supreme Court in the case o f A.Venkatasubbiah Naidu vs S.Chellappan and ors.(1 supra) for non-compliance of the Rule-39 Rule-3(a), the applicant who obtained the injunction order cannot take advantage of the ex parte injunction order if the order is not obeyed by the other party. In fact, the learned single Judge of this Court only vacated the injunction order for non-compliance of the Or-39 Rule-3 holding that the provisions are mandatory. Therefore, I am of the opinion that the Court below ought to have considered and passed orders on the injunction petition dismissing the same for non- compliance of the mandatory provisions. In the instant case, only the extension application is dismissed without deciding the injunction application. However, in view of the judgment of the Hon’ble Supreme Court in the case of A.Venkatasubbiah Naidu vs S.Chellappan and ors.(1 supra), the decisions cited by both the counsel of the learned Single Judges are of no consequence and the injunction application is required to be decided on merits, in accordance with law. This Court while issuing notice before admission granted interim injunction by order dated 31.12.2010 for a period of six weeks. To vacate the said order, the respondents filed the counter and vacate stay petition. In the very same judgment cited above, the Hon’ble Supreme Court while remanding the matter to the trial Court to pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law, granted status quo as is prevailed immediately preceding the institution of the suit. In the instant case, the defendants also filed a counter seeking to vacate the injunction order. As per the aforesaid judgment of the Hon’ble Supreme Court, the petitioner cannot take advantage of the ex parte injunction order and enforce the same. But, in other words, it cannot be said that the injunction order automatically stands vacated or dismissed, as per the aforesaid judgment of the Hon’ble Supreme Court. Having regard to the facts and circumstances of the case, to meet the ends of justice, I deem it appropriate to remand the matter to the trial Court to consider and pass appropriate orders afresh on the injunction application after hearing both the parties, in accordance with law, within a period of four weeks from the date of receipt of a copy of this order. Till then, the status quo order, as granted by the trial Court on 20.10.2010, shall continue. The Civil Revision Petition is accordingly disposed of. No order as to costs. ________________ V.ESWARAIAH,J Dated: 04.03.2011 Dsr Note: Furnish copy by Monday. B/o Dsr [1] 2001(1) ALD 1 (SC) [2] 1996 ALT (4) 483 [3] AIR 1994 J&K 25