PARAS MAL Vs. EXECUTIVE OFFICER MUNICIPAL

JUDGEMENT

(1.) THIS revision petition is directed against the order dated July 29, 1992, passed by the Munsif and Judicial Magistrate, Pindwara, by which the learned Munsif recalled the order dated July 22, 1992, granting temporary injunction in favour of the plaintiff.

(2.) THE plaintiff filed a suit for permanent injunction in the Court of the learned Munsif and Judicial Magistrate, Pindwara. Alongwith the suit, the plaintiff filed an application under Order 39 Rules 1 and 2 C.P.C. for the grant of temporary injunction -Summons in the suit as well as for the application under Order 39 Rules 1 and 2 C.P.C. were issued to the defendant, which were duly served. The defendant did not appear on 22.7.1992. The learned trial Court, therefore, passed an order proceeding ex -parte against the defendant. The learned Munsif, also, decided the application under Order 39 rules 1 and 2 C.P.C. and granted temporary injunction in favour of the plaintiff restraining the defendant to demolish the stairs -case, latreen, bath -room, upper storey of the house and the balcony by themselves or through any other person. The defendants were further restrained from interfering in the peaceful use of the shop in question by the plaintiff. The defendant, therefore, moved two application -one for setting -aside the ex -parte order passed in the civil suit and another for the recalling of the order dated 22.7.1992, granting temporary injunction. The learned Munsif recalled the ex -parte order in the suit and allowed the defendant to contest the suit. The learned Munsif, also, recalled the order daed 22.7.92, granting temporary injunction. It is. against this order that the plaintiff -petitioner has filed the present revision petition.

(3.) RULE 4 Order 39 covers two types of cases where injunction passed by the Court may be discharged, varied or set -aside. First type of cases are such where a temporary injunction has been granted on the basis of an application supported by an affidavit and later on it was found that the plaintiff knowingly made a false and misleading statement in relation to the material particulars and the injunction was granted without giving notice to the opposite parry. The second type of cases are such where the order for injunction has been passed after giving to the' party aggrieved an opportunity of being heard, but the setting aside of the order has been necessitated by a change in the circumstances or the Court is satisfied that the order has caused undue hardship to the party aggrieved, who is applying for the setting -aside of the order. Proviso (2) to Rule 4 of Order 39 never intended to set -at -naught the ordinary rule that when the injunction was granted after giving an opportunity of hearing to both the parties, the order becomes final. If the party served with the notice of the application for the grant of injunction fails to appear and contest the application and if in its absence the injunction has been granted then the party aggrieved has two remedies available to him against such order. He can file an appeal under Order 43 Rule 1(r) C.P.C. against such order which became final. The aggrieved party, under Order 39 rule 4 C.P.C. can, also, apply for discharge, variance or setting -aside of the order if it has been necessitated in the changed circumstances or the Court passing the order is of the opinion that it has caused undue hardship to the other party. Both the remedies are concurrent. In the present case, notices were issued to the defendants, which were duly served upon them, but they did not appear and, therefore, the order dated 22.7.92, was passed by the learned trial Court which could not have been varied, discharged or set -aside on the application of the party as the conditions precedent for setting -aside the order, were not in existence. Proviso (2) to Sub -section 4 of Order 39 rules 4 states that where an injunction has been granted after giving an opportunity of hearing to the opposite party, the order for injunction shall not be discharged, varied or set -aside on the application of the party except where such discharge, variance or cancellation is necessitated by the change in the circumstances or for the reason of hardship caused by it. The learned lower Court has not set -aside the order on the ground that there is any change in the circumstances or undue hardship has been caused to the defendants and, therefore, the order could not have been varied, set -aside or discharged by the learned Munsif under rule 4 of the Order 39 C.P.C. The defendant even Jailed to plead and establish any change in the circumstances or any undue hardship necessitating to vary, discharge or set -aside the order passed by the Court below and as such the provisions of Order 39 rule 4 C.P.C. were not available to the defendant. If the defendants were aggrieved of the order dated 22.7.91, passed by the learned Munsif then they could have approached the higher Court in an appeal under Order 43 Rule 1(r) C.P.C. and if any appeal had been filed then the learned appellate Court would have considered the legality and propriety of the order, passed by the learned trial Court granting injunction, on merit, but the trial Court has no jurisdiction after passing the order, to set -aside the same under Order 39 Rule 4 if the conditions of this rule are not satisfied. It is only if the conditions envisaged in rule 4 of Order 39 C.P.C. are satisfied that the order could have been varied, discharged or set -aside, hut as noon of such conditions exists in the present case, the order passed by the Court below deserves to be quashed an set -aside.