The central legal point established in the judgment is the proper application of Order 39 Rule 4 of the Civil Procedure Code and the circumstances under which a party is entitled to seek variation of an injunction order.

1. Heard rival submissions at length on this writ petition preferred by the petitioner-original defendant challenging the judgment and order dated 05.03.2009 of the District Judge-1, North Goa, Panaji in Miscellaneous Civil Appeal No. 137/2008. The said appeal preferred by the present writ petitioner-defendant was rejected and the earlier order passed by the learned Civil Judge Junior Division, Mapusa in Regular Civil Suit No. 208/2005/D dated 18.11.2008 was confirmed. The said order dated 18.11.2008 was passed on the application of the present respondent-original plaintiff under Order 39 Rule 4 of the Civil Procedure Code in the said suit asking for further clarification and for variation of injunction in the order earlier granted on 18.05.2006.

2. The facts of the case are rather peculiar in nature and apparently an example as to how the parties do not obey the order of the Court still when it is a question of touching safety of the persons residing in the neighbourhood.

3. Certain factual position and various stages and various orders passed by the earlier Courts are mentioned in order to have proper perspective of the matter and it is to be seen whether under writ jurisdiction any relief can be granted to the present petitioner-defendant.

4. Initially, the suit was filed by the present respondent-plaintiff for removal of the gas cylinders which were kept at the open space of the building in a brick-cement structure constructed by the petitioner-defendant without any authority. Admittedly, the said gas cylinders were kept outside the premises purchased by the petitioner-defendant from the respondent-plaintiff and those gas cylinders were used for supplying gas to burners/stoves used in the restaurant. Apparently, outside the premises where the gas cylinders are kept, there are also ornamental flower vases kept by the petitioner-defendant. As such, when the suit was filed for removal of such gas cylinders and flower vases, an application for injunction was also preferred and initially order was passed on 18.05.2006 by the trial Court. The said order reads thus:

“Application for temporary injunction is granted.

Defendant no. 1 is directed to remove the gas cylinders, ornamental vases placed on the parking area and further directed not to do any construction or digging or excavating in the suit property.

No order as to costs.

Proceedings closed.”

5. This order was challenged by the present petitioner-defendant in Miscellaneous Civil Appeal No. 46/2006. Said appeal was dismissed by the Ad-hoc Additional District Judge Fast Track Court, Mapusa vide order dated 10.07.2006. Present respondent-plaintiff also challenged said order dated 18.05.2006 in Miscellaneous Civil Appeal No. 45/2006. Subsequently, execution proceedings were adopted by the respondent-plaintiff. However, objection was raised by the present petitioner-defendant. Meantime, Writ Petition No. 565/2006 was preferred by the present respondent-plaintiff on the order of the District Court in Miscellaneous Civil Appeal No. 45/2006 and said appeal was preferred by the present respondent-original plaintiff challenging the original order dated 18.05.2006 as mentioned above. Though, the writ petition of the respondent-original plaintiff was dismissed, clarification is made by this Court vide order dated 07.02.2007 (Coram:- S.K. Shah, J.) that the observations made by the District Judge while dismissing the appeal of the petitioner-original defendant bearing no. 45/2006 were erroneous, in as much as, the District Court has wrongly interpreted the initial order of the trial Court dated 18.05.2006 to the effect that the removal of the gas cylinders from the parking space was directed vide order dated 18.05.2006. Though this Court has opined as to erroneous observations of the District Court, still the writ petition of the respondent, then plaintiff was not allowed as it was held that the petitioner is not aggrieved by final order of the Additional District Court. Wha