Thangavel vs Kanagaraj

Honourable Mrs. Justice Aruna Jagadeesan

These Civil Revision Petitions are filed against the order dated 14.3.2012 made in IA. Nos. 94 and 95/2012 in OS. No. 521/2010 by the

learned Principal Subordinate Judge, Karur, dismissing those applications. In brief the facts are that the Revision Petitioner as Plaintiff instituted a

suit in OS. No. 521/2010 against the Respondents/Defendants and others for partition and for permanent injunction restraining the Defendant from

creating any kind of encumbrance over the suit properties and further restraining the Defendants 9 to 25 from making any drenches and from

raising any construction including basement etc. in the suit B-Schedule Property and also restraining them from ploughing the soil by using JCB

Vehicles and dry the soil through heavy vehicles. An application for temporary injunction was also filed in IA. No. 666/2010. Notice was ordered

to the Respondents and the Respondents as Defendants entered appearance through their counsel. But, on 19.7.2011 the Respondents did not file

counter and therefore, the Trial Court after perusing the materials placed on record, granted an order of interim injunction till the disposal of the

suit.

The Respondents/Defendants filed two applications, one in IA.Nos422/2011 to discharge or set aside the order of interim injunction and

another in IA. No. 449/2011 to vacate the interim injunction granted in IA. No. 666/2010. In the said applications, the Plaintiff has filed counter

and they are pending for disposal.

In the meanwhile, the Plaintiff has filed two applications in IA. No. 94/2012 and IA. No. 95/2012 to decide about the maintainability of

applications filed by the Respondents/Defendants in IA. Nos. 422 and 449/ 2011. It was contended before the Trial Court that since the order of

injunction has been passed on merits after giving sufficient opportunity to the Respondents/Defendants, the applications filed under Order 39 Rule

4 of CPC is not legally maintainable and thus, prayed for rejection of those applications. The Trial Court, after hearing both sides, dismissed the

applications filed by the Plaintiff in IA. Nos. 94 and 95/2012, as against which, the present Civil Revision Petitions are filed.

I have heard Mr. K. Govindarajan, the Learned Counsel for the Petitioner and Mr. B. Saravanan, the Learned Counsel for the Respondents 1

to 7. I have perused the records as well as the impugned orders.

The Learned Counsel for the Petitioner strenuously contended that the order granting interim injunction was passed after giving several

opportunity to the Respondents/Defendants and there was no change of circumstances to maintain a petition under Order 39 Rule 4 of CPC. He

further contended that the points, which were neither raised nor argued before the Trial Court, cannot be allowed to be raised by the Defendants.

The Learned Counsel further submitted that an order of interim injunction, which has been made after giving to the Defendants an opportunity of

being heard, could not be discharged or interfered with except on the presentation of new matter not available. When the original order was

passed and when the Defendants by their own laches omitted to file their counter to the Plaintiff''s application, they could not later on be allowed to

file application under Order 39 Rule 4 of CPC and have the case re-opened or re-heard. Hence, he would contend that the applications filed by

the Defendants are not maintainable and should be rejected.

The Learned Counsel, in support of his above said contentions, placed reliance on the decisions of the Madhya Pradesh High Court rendered in

the cases of Sitaram Madan Ahir vs. Rajkunwarbai and others (AIR-1959-MP-275), Laxmi Devi Vs. Dula Ram (AIR-19920Raj-165) and

Govinda Ramanuja Das Goswami Vs. Vijaramaraju and another (AIR-1929-Madras-803).

On the other hand, the Learned Counsel for the Respondents contended that there is no embargo under the law to make application for

appropriate interlocutory relief by way of variation and setting aside previous interlocutory order made under Order 39 Rule 4 of CPC. He would

submit that the second proviso to Rule 4 of Order 39 of CPC provides to vary or set aside the order of injunction granted, if there is necessity by

the change of circumstances or by reason of the hardship caused by such order. The Learned Counsel placed reliance on the decision of the

Calcutta High Court reported in AIR-2003-Cal-55 (Dover Park Builders Pvt. Limited and others Vs. Madhuri Jalan and others) and an

unreported judgement of the same High Court rendered in the case of Sri Sailendra Nath Patra Vs. Smt. Geetanjali Manna and others dated

23.12.2011 in FMA.N. 1244/2010 in support of his contention.

The Respondents/Defendants sought to have the order of injunction made earlier discharged or varied and has set out the circumstances in the

affidavit filed in support of the application filed under Order 39 Rule 4 of CPC, which I am not inclined to traverse on it, as it would affect the

disposal of those applications on merits. It is no doubt true that the Respondents/Defendants did not file any counter and urge any substantial

grounds opposing the Plaintiff''s prayer for an order of injunction. That order of injunction having been made after giving to the Defendants an

opportunity of being heard cannot be discharged or interfered with except on two circumstances, viz. (i) it has been necessitated by a change in the

circumstances or (ii) the court is satisfied that the order has caused undue hardship to that party against whom an order of injunction is passed.

In the decision of the Division Bench of this Court rendered in the case of Govinda Ramunaja Goswami Vs. Vijiaramraju (AIR-1929-Madras-

803), their Lordships have made an observation that Order 39 Rule 4 of CPC is intended to cover two classes of cases, (i) when an urgent order

exparte 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 (ii) when an injunction order already in force has owing to fresh circumstances, become unduly harsh and unnecessary or unworkable, it

would open to either party to apply under Rule 4 to the court to discharge, vary or set it aside.

In the present case, though an opportunity had been given to the Respondents/Defendants, but the order passed can be termed only as an

exparte order. When an exparte injunction has been issued against the Respondents/ Defendants and when the party against whom the order of

injunction is issued applies under Rule 4 of Order 39 of CPC for the discharge, variation or setting aside of the order, it is the duty of the court to

decide the objections raised and circumstances pleaded on merits. The Respondents/Defendants have raised certain points which goes to the root

of the matter, the Trial Court should go into the matter and if it is satisfied, it shall pass orders either withdrawing the order of injunction or rejecting

the application filed by the Respondents/ Defendants.

At this juncture, I may quote a passage from the Law relating to injunction (12th Edition by Woodroffe) which reads thus:-

The power which the court possesses of granting injunction whether interlocutory or perpetual (however salutary) should be very cautiously

exercised and only upon clear and satisfactory grounds; otherwise it may work the greatest injustice. An application for an injunction is an appeal

to the extraordinary power of the court, and the Plaintiff is bound to make out a case showing a clear necessity for its exercise; it being the duty of

the Court rather to protect acknowledged rights than to establish new and doubtful ones. Moreover, a temporary is a restrictive or prohibitory

process designed to compel the party against whom it is granted to maintain his status merely until the matters in dispute shall by due process of the

Courts be determined. As such, an injunction is in its operation, somewhat like judgement and execution before trial; it is only to be resorted to

from a pressing necessity, to avoid injurious consequences which cannot be repaired under any standard of compensation.

In the present case, at the time when the court originally granted injunction, the order was issued on the basis of the records produced by the

Plaintiff. The court was not having an opportunity to see the other side of the picture. That is why; the Trial Court has observed that the order of

injunction passed by it is an exparte order. A specific remedy for vacating or varying the order of injunction is available to the Respondents /

Defendants and therefore, they cannot be deprived of opportunity to put forth the change in circumstances or undue hardship caused to them by

the grant of injunction. The Trial Court is given power to vary or discharge the order of injunction on being satisfied that there is change in

circumstances and the order has caused undue hardship. Therefore, taking the above said facts into consideration, the Trial Court has entertained

applications filed by the Respondents/ Defendants under Order 39 Rule 4 of CPC and the said applications are yet to be disposed of on merits.

Therefore, I do not find that the court below in the exercise of its jurisdiction has acted illegally or with material irregularity warranting interference.

In the result, these Civil Revision Petitions have no force and so, they are hereby dismissed. The Trial Court is directed to dispose of the

applications in IA. Nos. 422 and 449/2011 on merits and in accordance with law, after giving sufficient opportunity to the parties, as expeditiously

as possible. No costs. Consequently, the connected MPs are closed.