. It is well settled that once a notice sent to the correct address, a legal presumption can be drawn that it is served, unless it is rebuttable
JUDGMENT A. Gopal Reddy, J.
1. This appeal is filed assailing the correctness of the order dated 6-7-2004 passed by the learned II Additional Senior Civil Judge, Warangal, in Memos vide SR. Nos. 1568 and 2133 of 2004 in LA. No. 285 of 2004 in O.S. No. 135 of 2004.
2. The appellants herein filed the above suit for declaration, partition of movable and immovable properties and for permanent injunction. They also filed LA. No. 285 of 2004 seeking injunction restraining the respondents not to alienate the suit schedule property. The lower Court by order dated 9-4-2004, granted ad interim exparte injunction in favour of the appellants herein subject to compliance of the provisions of Order XXXIX Rule 3 CPC. On service of the notices, respondents 5 and 6 filed a Memo in SR. No. 1568 of 2004 and respondents 1 and 2 also filed another Memo in SR. No. 2133 of 2004 for vacating the said ex parte injunction order on the ground that the copies of plaint documents have not been enclosed and therefore, the appellants failed to comply with the mandatory requirements of Order XXXIX Rule 3 CPC. To verify the genuineness of the contentions of the above respondents, the lower Court opened the returned registered unserved cover in the Court Hall and found copy of the plaint, petition and affidavit in LA. No. 285 of 2004 and five documents alone in it. In view of the failure of complying with the mandatory requirements of Order XXXIX Rule 3 CPC by the appellants, the lower Court passed an order dated 6-7-2004 vacating the ad interim ex parte injunction granted in favour of the appellants. Aggrieved by the same, this appeal is preferred.
3. Learned Counsel for the appellants contends that under Section 27 of the General Clauses Act, once the appellants/plaintiffs filed an affidavit about compliance of the same, the burden lies on the respondents to prove that all the necessary documents have not been furnished to them by producing the covers received by them. He further contends that the lower Court by simply opening the returned registered cover, came to the conclusion that the plaintiffs have not been complied with the mandatory requirements of Order XXXIX Rule 3 CPC, and vacated the injunction order granted by it, without making any enquiry and that unless such burden is discharged, the injunction order cannot be vacated. Therefore, the impugned order is liable to be set aside.
4. Per contra, the learned Counsel for the respondents contends that once the plaintiffs failed to enclose all the documents, on which they rely on, the injunction order cannot be continued. The lower Court rightly vacated the said order following the judgment of this Court in Nikesh v. Malathi Bai and Ors., 1996 (4) ALD 1225.
5. In order to resolve the controversy, it is appropriate to notice Order XXXIX Rule 3 CPC, which is as follows :
3. 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.)
6. Order XXXIX Rule 3(a)(iii) CPC clearly envisages that copies of the documents, on which the applicant relies on, have to be furnished.
7. It is not necessary that all the documents along with the plaint documents have to be enclosed for obtaining an injunction, and the relevant documents, which are necessary for obtaining injunction, have to be sent along with the plaint, affidavit etc. By mere filing the documents along with the plaint, one cannot presume that the plaintiff places reliance upon all the documents for obtaining an injunction. It can be known only when an opportunity is given to the parties. Whether five documents available in the returned registered cover alone were sent to respondents 1, 2, 5 and 6 is a matter to be decided only after the respondents producing the covers received by them and the documents enclosed in it.
8. It is well settled that once a notice sent to the correct address, a legal presumption can be drawn that it is served, unless it is rebuttable. In view of the same, the impugned order cannot be sustained;
9. For the aforesaid reasons, the impugned order is set aside and the matter is remitted to the lower Court for fresh consideration. It is needless to say that the parties are at liberty to adduce such of the evidence in order to substantiate their respective pleas about compliance or non-compliance of the mandatory requirements.
10. The civil miscellaneous appeal is accordingly allowed. No order as to costs. under sale deed dated 26-4-1978 and that he did not encroach - Decree by Trial Court - Confirmed in appeal - Second appeal -Held, once it emerges that land covered by appellant's sale deed is nothing but suit schedule property and that it was subject matter of respondent's sale deeds, it is liable to be restored to respondent - Second appeal dismissed - RECOVERY OF POSSESSION - Suit for, based on title -Limitation.
It is true that the respondent did not seek the relief of declaration of title and it is impermissible for the Court to pronounce upon the titles of the parties in such suits. It must, however, be kept, in mind that it is permissible for the owner of the property, to seek recovery of possession, if any part of it is encroached by third parties, without seeking the relief of declaration. Much would depend upon the confidence, which he possesses about his own title. In such suits, the Courts have to examine as to how far the confidence of the plaintiff is well placed and whether the relief of recovery of possession can be granted without the necessity of requiring the plaintiff to seek declaration as to title. Where, the plaintiff is able to satisfy the Court, as to the existence of adequate background for his title, the relief of recovery of possession can certainly be granted. In such cases, the Courts would no doubt be in a quandary in expressing their opinion as to the respective rights of the parties. Lack of proper care, in this regard, may sometimes result in a situation, where the title of the parties stands declared, though no such relief is claimed. The instant case presents such a situation. [Para 11] The record clearly discloses that the respondent had prima facie acquired the title under Ex.A.1 for Ac.0.12 1/2 cents and the suit schedule property Ac.0.2 1/2 cents is part of it. So far as the claim of the appellant is concerned, once it emerges that the land covered by Ex.B.1 is nothing but the suit schedule property, and that it was the subject-matter of Ex.A.1 and A.2, it is liable
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