Abdul Rashid Bhat vs Hilal Ahmad Bhat And Ors on 28 April, 2025

Jammu & Kashmir High Court – Srinagar Bench

Abdul Rashid Bhat vs Hilal Ahmad Bhat And Ors on 28 April, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

                                            38
                                            Regular

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT SRINAGAR
                                    FAO No. 10/2023

Abdul Rashid Bhat
                                                   ..... Appellant (s)

                      Through:   Mr. Mian Tufail, Adv.
                                 with Mr. Mian Rouf, Adv.

                    V/s

Hilal Ahmad Bhat and Ors.
                                            ..... Respondent(s)
                      Through:   Mr. M M Dar, Adv.
                                 with Mr. Kaiser, Adv.
Coram:
          Hon'ble Mr. Justice Sanjay Dhar, Judge

                              ORDER

28.04.2025

1. Through the medium of present appeal, the appellant has

challenged order dated 16.05.2023 passed by the learned

Additional District Judge, Budgam whereby application

under Order XXXIX Rule 1 and 2 of CPC filed by the

petitioner/plaintiff in a suit filed by him against the

respondents/defendants has been dismissed on the ground

that the petitioner/plaintiff has not complied with the

requirements of Order XXXIX Rule 3(b) of CPC.

2. Heard and considered.

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FAO No. 10/2023

3. It appears that the petitioner/plaintiff had filed suit for

permanent prohibitory injunction against the

respondents/defendants before the learned trial court for

restraining them from interfering in his peaceful possession for

the land measuring 20 Kanals falling under Khasra No. 58, 59

situated at Parwara, Chadoora.

4. It appears that along with the suit, the petitioner/plaintiff also

filed an application for grant of interim injunction against the

respondents/defendants. An exparte interim order came to be

passed in favour of the petitioner/plaintiff on 16.12.2022. It

also appears that the petitioner/plaintiff had failed to file

affidavit of service in terms of Order XXXIX Rule 3(b) of

CPC, as a result whereof, the learned trial court declined to

extend the exparte interim order and dismissed the application

of the petitioner/plaintiff.

5. In the memo of appeal, the appellant has specifically pleaded

that at the time of effecting service of summons upon the

defendants, copy of the plaint and the copy of the interim

order dated 16.12.2022 were handed over by the Process

Server to the defendants through their father regarding which

a proper receipt was obtained. It has been further submitted
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FAO No. 10/2023

that the process server had submittted his report to confirm

this fact.

6. Having regard to the fact that the receipt of summons along

with copy of the interim order and copy of the plaint by the

defendants/respondents is not in dispute, merely because

petitioner/plaintiff had failed to file affidavit confirming this

fact in terms of Order XXXIX Rule 3(b) of CPC may not be a

a good enough ground to vacate the interim order.

7. The provision contained in XXXIX 39 Rule 3(b) of CPC is

procedural in nature and the purpose of this provision is that

the party against whom the exparte injunction is passed by the

Court comes to know about it so that it takes necessary steps

either to get it vacated or in the alternative, to comply with it.

The said object has been achieved in the present case by

delivery of the summons along with copy of the interim order

and the copy of the plaint to the defendants/respondents, as

has been confirmed by the Process Server. In these

circumstances, non-filing of the service affidavit by the

plaintiff has not caused any prejudice to the defendants. Thus

mere non-filing of the service affidavit by the

petitioner/plaintiff in the present case is not such grave
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FAO No. 10/2023

omission that would entail dismissal of the application under

Order XXXIX Rule 1 and 2 of CPC, without adverting to the

merits of the case.

8. For the foregoing reasons, the appeal is allowed and the

impugned order dated 16.05.2023 passed by the learned

Additional District Judge, Budgam is set aside and the case is

remanded to the said Court with a direction to decide the

application for grant of interim injunction under Order

XXXIX Rule 1 and 2 CPC filed by the petitioner/plaintiff on

its merits after hearing the parties preferably within thirty days

from the date a copy of this order is served upon the said

court.

(Sanjay Dhar)
Judge
SRINAGAR
28.04.2025
Aasif