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. P a g e | 2 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 P a g e | 3 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 P a g e | 4 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