CYRIAC JOSEPH, J. - (1.) The petitioner in this revision petition is the defendant in the suit and the respondent is the plaintiff therein. The plaintiff filed a suit for permanent injunction restraining the defendant from dispossessing the plaintiff from the suit property. The plaintiff claimed to be the owner in possession of the suit property. The defendant filed written statement claiming title and possession over the suit property. However, the trial court passed a decree of perpetual injunction restraining the defendant from dispossessing the plaintiff from the suit property. The defendant filed an appeal in the Court of the Senior Civil Judge, Delhi on 18-11-1985 against the judgment and decree dated 30-9-1985 passed by Shri Z.S. Solanki, Civil Judge, Delhi. The plaintiff filed reply to the appeal on 26-2-1986. The appeal was adjourned from time to time for arguments. In the meanwhile the appellant/defendant moved an application dated 21-1-1989 under order 39 Rules 1 and 2 of the code of Civil procedure (for short called 'the code') praying that the respondent/plaintiff, his associates, attorneys, employees, servants, friends and relative's be restrained from parting with possession of the suit property and from raising any illegal and unauthorised construction without duly sanctioned plan from M.C.D. till the decision of the appeal on merits. On the said application the appellate court on 23.1.1989 passed the following order:- "23.1.89 Case taken uptoday on application of appellant. Present : Counsel for the appellant. Heard. The respondent is directed to maintain status-quo in respect of possession and construction at site. Put up on the date fixed. Notice be issued to respondent on P.F. sd/- Addl. Senior Sub Judge Delhi". Thereafter on 2.12.1997 an application under Order 39 Rule 4 and Section 151 of the Code was moved on behalf of the plaintiff praying to vacate the exparte injunction order granted on 23.1.1989. The said application was filed along with the affidavits of S/Shri Wariyam Dass Khurana and Devinder Pal Singh who claimed to be power of attorney holders of Shri Ramesh Kumar and Shri Rakesh Kumar who in turn were attorneys appointed by Shri Ramesh Kumar sharma who was appointed attorney by the plaintiff Shri Lacmi Chand Sharma. as his attorney. One of the grounds urged in the said application for vacating the ex parte injunction order was that the applicant in the injunction application had not complied with the provisions of Order 39 Rule 3 of Code. The defendant filed reply to the said application under Order 39 Rule 4 of the Code contending that the said application was not maintainable, that the plaintiff was aware of the injunction order from 23-1-1989 onwards, that several counsel had been appearing for the plaintiff after 23.1.1989 without raising any objection about the injunction order and that requisite notice was sent to the plaintiff along with the documents after the passing of the injunction order dated 23.1.1989. However, by order dated 30-3-1998 the learned Senior Civil Judge allowed the application under order 39 Rule 4 of the Code and vacated the interim order dated 23.1.1989. The learned Senior Civil Judge also dismissed the application of the defendant/appellant under Order 39, Rules 1 and 2 of the Code. The said order dated 30.3.1998 of the learned Senior Civil Judge is challenged in this revision petition.
(2.) In the application dated 2.12.1997 filed under Order 39 Rule 4 of the Code the plaintiff contended that the ex parte injunction order dated 23-1-1989 was liable to be set aside and vacated for non-compliance of the provisions of Order 39, Rule 3 of the Code. In support of the said contention the plaintiff made the following averments in paragraph (7) of the said application:- "7. That it is submitted that the appellant never got the notice of the said application dated 21.1.89 issued and served upon the respondent and did not even get the ad interim injunction granted on 23.1.89 served upon the respondent. The appellant did not comply with the provision of Order 39, Rule 3 Civil Procedure Code . and did not send the copy of the said application along with the documents relied upon by him within 24 hours of the passing of the order to the respondent. The appellant having obtained the said order did not press the said application at any time and the said order of injunction was never referred to or extended in subsequent proceedings."
(3.) In the reply filed by the defendant it was stated that requisite notice was sent to the respondent along with the documents after the passing of the order dated 23.1.1989. The avernments in paragraph 7 of the application were denied by the defendant. According to the defendant it was false that the appellant-defendant did not comply with the provisions of Order 39, Rule 3 of the Code as alleged.;