An interim order by way of injunction passed after giving an opportunity of being heard to the parties shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the Order has caused undue hardship.

A M. Bhattacharjee J. Basumati Corporation Ltd., Respondent no. 1 in both the appeals, proposes to come out with the publication of its Newspaper, till now published from Calcutta only, from Siliguri also and with that end in view has ordered some of its officers and employees, including the appellants in these two appeal, to be transferred to Siliguri. The fourteen appellants in Appeal no. 423 and the sole appellant in Appeal no. 424 filed. two separate Writ Petitions, giving rise to these two appeals, challenging the aforesaid order of transfer.

2. After hearing both the petitioners and the respondents, the learned Judge on 5592, passed interim order saying the operation of the Orders of transfer assailed by appellants/writ-petitioners. The writ petitions were thereafter heard analogously in due course for about 3 days and those were listed for Judgment the day after i.e., on 29.5.92 On that date, however, the learned Judge thought it fit to set down the matters for further hearing on 25.6.92; this the learned Judge could obviously do. But be also modified and in effect discharged the interim orders already passed. This was again not beyond the competence of the learned Judge. But we are afraid, and this we say with respect that the learned Judge could not do so in the manner he did for the reasons stated hereunder.

3. The learned Counsel for the appellants has addressed us at length on the illegality of the orders of transfer, on the propriety and expediency of the interim order passed and its continuance till the disposal of the Writ petitions and the illegality of the impugned order modifying and virtually discharging the interim order. Even when the appeal is not against the interim order, but against variation or modification thereof, the legality or the propriety of the interim order may still be relevant; for if the original interim order could not in Law be made in any view of the materials on record and the law applicable thereto, an appellate Court would not strike down the discharge thereof by the Court below and countenance its continuance, even if the Court below was wrong in matters of procedure in the manner in which the discharge was made. But since there was an interim order, and the same continued till and during the hearing of the main lis, and the hearing was also once concluded and the matters were listed for Judgment and have now again been adjourned for further hearing about two weeks hereafter, we do not, as we should not, pronounce upon the legality, propriety or otherwise of the original interim order. But we have no doubt that the Court shall not, except for compelling reasons of exceptional nature, make an interim order, allow in to continue till and during the hearing of the main lis, post the lis for Judgment on a date and then, without delivering the Judgment and adjourning the matter for further hearing, vary, modify or discharge the interim order. We have not been able to glean from the matters on record any compelling circumstances of exceptional nature and, as far as we can see, nothing of that sort has been adverted to by the learned judge.

4. Notwithstanding the Explanation to s. 141 of the Code of Civil Procedure rendering the provisions of the Code inapplicable ex proprio vigore to the proceedings under Article 226 of the Constitution; the procedure relating to Suits in the Code has nevertheless been made applicable to such proceedings by Rule 53 of the Rules framed by this Court in exercise of its legislative powers under Article 225 and other relevant provisions. The question of modification, variation or discharge of an “interim order by way of injunction” (being the expression used in Article 226(3) of the Constitution) should, therefore be governed by the - provisions of Rule 4 of Order 39 of the Code. Under the second proviso to that Rule, "where an Order of injunction has been passed after giving to a party an opportunity of being heard, the Order shall not be discharged, va