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High Court Of Calcutta
KALYAN JYOTI SENGUPTA
DOVER PARK BUILDERS PVT.LTD. - Appellant
Versus
MADHURI JALAN - Respondent
G. A. 1350 Of 2002
Decided On : 07/18/2002
INJUNCTION - CHANGE OF CIRCUMSTANCES - VARIATION OF INJUNCTION ORDER - LEGAL PRINCIPLES: 1. Order XXXIX Rule 4 of the CPC empowers parties to apply for discharge, variation, or setting aside of any order of injunction based on subsequent facts or circumstances. 2. The court may vary or discharge an injunction order if there has been a change in circumstances, undue hardship caused to a party, or if the order has become ineffective due to subsequent developments. 3. The object of interlocutory orders is to prevent irreparable loss and injury during the pendency of the suit and to ensure that the ultimate relief granted is not rendered infructuous. 4. The court has the discretion to modify or discharge an injunction order to avoid undue hardship to a party, considering the balance of convenience and the interests of both parties.
Fact of the Case:
The defendant sought permission to transfer and sell flats in a proposed building to be constructed on the suit premises, along with a proportionate share of the land, by entering into agreements. The plaintiff, claiming an oral agreement for assignment of the leasehold interest, obtained an injunction restraining the defendant from transferring, vacating, and dealing with the premises. The defendant appealed, and the appellate court allowed the defendant to construct the building but prohibited any dealing with or encumbering the property without the court's permission.
Finding of the Court:
The court held that the defendant had the right to apply for variation or discharge of the injunction order under Order XXXIX Rule 4 of the CPC. The court found that there was a change in circumstances due to the renewal of the sanction plan for the building and the possibility of undue hardship if the defendant was not allowed to complete the construction within the renewed period.
Issues: 1. Whether the defendant had the right to apply for variation or discharge of the injunction order. 2. Whether there was a change in circumstances or undue hardship justifying the variation or discharge of the injunction order.
Ratio Decidendi: The court reasoned that the defendant had the right to apply for variation or discharge of the injunction order under Order XXXIX Rule 4 of the CPC, which allows parties to apply for such relief based on subsequent facts or circumstances. The court also found that there was a change in circumstances due to the renewal of the sanction plan for the building and the possibility of undue hardship if the defendant was not allowed to complete the construction within the renewed period. Therefore, the court held that it was appropriate to vary the injunction order to allow the defendant to complete the building but with certain restrictions to protect the plaintiff's interests.
Final Decision: The court allowed the defendant's application and varied the injunction order to permit the defendant to complete the building in terms of the sanctioned plan, either on her own cost or by raising funds from third parties without creating encumbrances. However, the defendant was prohibited from transferring or alienating any portion of the building during construction or after completion. The court also imposed certain conditions to ensure transparency and accountability in the defendant's dealings, such as providing copies of agreements with prospective buyers to the plaintiff's advocate, maintaining detailed accounts of expenditure and income, and keeping the balance of funds in a separate bank account.
( 1 ) THIS application has been taken out by the defendants for permission of this Court allowing them to take steps for transferring, selling the suites or flats to be constructed in the proposed building in the said premises, along with proportionate share of the land by entering into agreement. The present application was filed in the Learned Court of Initiation, namely, the Court of the Learned Second Assistant district Judge at Alipore and this was not disposed of during pendency of the suit in the above Court. This application was taken out by the original defendant No. 1, along with other defendants and by passage of time, much-water has flown through the ganges. Meanwhile, the defendant No. 1 died, surviving his wife as the heiress and legal representative, who has been brought in the suit and is proceeding with this application. I feel it necessary to narrate short facts of the case and the circumstances in which the present application has been taken out, as put forward by the petitioner.
( 2 ) THE original defendant No. 1, namely, one Mahabir Prasad Jalan since deceased obtained a lease for 99 years on 1st June 1996, of the suit premises from one Murari charan Law being the owner of the said premises. Similar long lease was granted by the said owner in respect of the premises no. 14 Dover Park Road, being the adjoining premises in favour of two brothers of the defendant No. 1, including the plaintiff No. 2. It is the case of the petitioner that the defendant No. 1, thereafter, decided to develop the suit premises by constructing a residential complex and obtained necessary sanction and permission of various authorities, including Calcutta Municipal Corporation (C. M. C.) consisting of basement, ground floor partly 6th and partly 7th floor covering approximately 10536. 50 sq. m. The original defendant No. 1 with the help of various developers, architects and financier started construction of the building and completed up to ground floor level. The present suit was filed by the plaintiff Nos. 2 to 4, claiming decree for specific performance of an oral agreement said to have been entered into by the defendant No. 1 with the plaintiff No. 1 company. It is alleged that such agreement was for assignment for right, title and interest of the petitioner in respect of the said premises in favour of the plaintiff No. 1 company. After filing of the suit an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure was made praying for temporary injunction, restraining the original defendant No. 1 from transferring, vacating and dealing with the said premises. On final hearing the said application under order XXXIX Rules 1 and 2 of the CPC the learned Trial Judge dismissed the same. Thereafter, the plaintiff preferred an appeal against the said order of dismissal in this hon'ble Court, the appeal was heard and disposed of by the following interim order dated 17th August 1994 :"regard being had to the entire facts and circumstances of the present case we are of the view that since the sanctioned plan stand in the name of Mahabir Prasad Jalan showing him to be the owner of the property, he has rights and competence to go on with the construction of the proposed building at the site strictly in accordance with the sanctioned plan. But then in the fitness of things we should not allow any rights in favour of any third parties to be created during construction or immediately after the completion thereof and would pass a limited order of injunction restraining the defendant respondents from in any manner dealing with, encumbering, transferring and selling the property or part thereof including the suites or flats in the proposed building without the prior permission from the Court below. "
( 3 ) THE plaintiff Nos. 1-4 sought to prefer an appeal against the aforesaid judgment and order of the Division Bench to the hon'ble Supreme Court of India, however, the Special Leave Petition was dismisse
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