MOHAMMAD KHALILUR RAHMAN Vs. PARASNATH

JUDGEMENT

(1.) The plaintiff is the petitioner in this case. He instituted Title Suit No. 129 of 1961 for, amongst others, a declaration that the execution for eviction of a decree passed in title suit instituted by We defendant No. 1 (hereinafter to be referred to as 'the defendant) against the plaintiff was illegal and for an injunction restraining the defendant from taking delivery of possession in pursuance or that decree a prayer for ad interim injunction was made by the petitioner and it was granted on the 3rd of October, 1961. On the 2lst of November, 1961, 'that order of ad Interim injunction was made absolute as the defendant am mot appear to contest. Soon, thereafter, on the 24th of November, 1961, the defendant made an application for recalling the order of injunction on the ground that the notice of the ad interim injunction was not served on him and the same was suppressed, and also on the ground that this was not a fit case for granting any injunction. The trial Court, after hearing the parties, recalled me order of injunction on the 9th of December, 1961, and refused, on the facts of the case, to grant any injunction. An appeal against that order by the petitioner also failed. Hence, this application has been filed in this court.

(2.) The finding of the trial Court is that the notice or the ad interim, order of injunction was not served on the defendant and it was suppressed, it, therefore, acting under the provisions of Order XXXIX, Rule 4, of the code or Civil Procedure (hereinafter to be referred to as 'the code'), recalled the order and rejected the petition of the petitioner for granting an injunction. Order XXXIX, Rule 4, states that any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order. The Court of appeal below also agreed with the trial Court in regard to me exercise of the power by that Court conferred on it under Rule 4 of order XXXIX.

(3.) Mr. Asghar Hussam, appearing for the petitioner, has contended that the court had no jurisdiction under Section XXXIX, Rule 4, of the code to recall the order of injunction already passed as it was intended to apply to only we cases, namely, (1) where in certain urgent cases the court could pass am ex parte order of injunction under Rule 3 of Order XXXIX, and (2) where the order of injunction may nave the effect of becoming unduly harsh or unnecessary or unworkable if there had already been a previous order or injunction. In support of this contention, he has cited before me a Bench decision of the Madras High Court, in Govinda Ramanuja Goswami v. Vijlaramaraju, AIR 1929 Mad 803. In that case their Lordships did make an observation that Order XXXIX Rule 4, is intended to cover two classes of cases, (1) when an urgent order ex parte has been passed under rule 3, rule 4 will allow the party against whom It has been passed to apply to have it discharged or varied or set aside, and (2) when an Injunction order already in force has, owing to fresh circumstances, become unquiet harsh or unnecessary or unworkable, it would be open to either party to apply under Rule 4 to the Court to discharge vary or set it aside. It was further observed that Rule 4 is not intended to set at nought the ordinary cursus curiae that, once a Court has decided a matter after giving each side an opportunity of being heard, its order is final and binding on itself as much as on the parties, and cannot be re-opened except on the representation of some new matter not available when the original order was passed, in my opinion, this case, instead of being of any assistance to the petitioner, supports the case of the defendant. The ratio of that case appears to be that, if an order of injunction has Been passed after giving opportunity to both the parties to be heard, It cannot ordinarily be set aside or varied under Rule 4; but where there has been no opportunity given to a party against whom the order of injunction has been passed to be heard, that principle of law will not apply and Rule 4 of Order XXXIX of the Code will come to the aid of that party to require the court to recall the order. In the instant case, on the finding that the notice of the ad interim order of injunction was not served on the defendant, it was a clear case where we Court could exercise its power under Rule 4 of under XXXIX. Moreover, the effect of the decision of the Madras High Court is not that the principles of Rule 4 could be invoked only in two classes of cases enumerated by their Lordships in their judgment, their Lordships nave made a reference to two classes of cases only by way of illustration. They did not, however, say that there cannot be a third class of cases in which, on the principle enunciated above, Rule 4 could not be invoked.