RAM ASHIS Vs. DISTRICT JUDGE DEORIA

JUDGEMENT

(1.) Leave is granted to convert the petition into one under Article 227 of the Constitution of India.

(2.) The order dated 24th July, 1999 passed by the learned District Judge. Deoria in Civil Appeal No. Ml of 1999 affirming the order dated 21st July. 1999 passed by the learned Civil Judge. (Senior Division), Deoria in Original Suit No. 33 of 1997 has since been challenged in this writ petition under Article 227 of the Constitution of India. Initially on 6th February, 1997 notices were Issued in connection with the application for temporary injunction filed by the plaintiff. On 17th February, 1997 in presence of the defendants No. 2. 3, and 4, ad interim injunction was granted. Subsequently defendant Nos. 1, 2 and 5 had filed an application under Order XXXIX, Rule 4 of the Code of Civil Procedure. The same was allowed by order dated 21st July, 1999 by the Civil Judge (Senior Division). Deoria. The interim order dated 17th February. 1997 was vacated as against the defendant Nos. 1, 2 and 5 and thereafter on the basis of the finding, in the interest of justice, the parties were directed to maintain status quo. This order was affirmed by the learned District Judge. Deoria.

(3.) While challenging the same. Mr. R. S. Kushwaha, learned counsel for the petitioners contends that since the defendant No. 2 was present when the order of ad interim injunction was passed, therefore, the same could not be varied or vacated under Order XXXIX. Rule 4 in view of Second Proviso to the said Rule. He contends that since defendant No. 2 was present unless he is able to show that there has been a change in circumstance, there is no scope for vacating the interim order. He further contends that unless the Court records a finding of its satisfaction that the order passed was causing undue hardship to the party, there was no scope for vacating the interim order against the defendant No. 2. On these grounds, he contends that the order impugned should be set aside.