The court affirmed that modification of an injunction order requires a change in circumstances, which was not established by the defendants, thus upholding the original injunction.

JUDGMENT :

Sabyasachi Bhattacharyya, J.:-

1. The present appeal has been preferred against an order whereby the application filed by the defendants/appellants under Order XXXIX Rule 4 of the Code of Civil Procedure for modification of an injunction order was dismissed on contest.

2. Learned Counsel for the appellants argues that although the defendants/appellants had started construction much prior to the institution of the partition suit, by virtue of the injunction order, the said construction has been stopped, thereby resulting in the building materials and the construction partially made decaying.

3. It is argued that the plaintiffs/respondent Nos. 1 and 2, who are the owners of a minuscule share in the property, are holding the interests of over 40 co-sharers at ransom. It is argued that the injunction order restraining all the defendants from making any further construction is not commensurate with the minimal shares claimed by the plaintiffs.

4. Learned Counsel for the respondent Nos. 1 and 2, who are the plaintiffs in the court below and the primary contesting respondents, argues that the points now sought to be raised before this court were substantially urged before the learned Trial Court at the time of disposal of the injunction application. That apart, it is pointed out that the sanction plan pleaded to have been obtained by the appellants was not produced before the Trial Court. Moreover, it is argued that even as per the appellants, the sanction plan was obtained in the month of March, 2023 i.e. after the injunction order was passed on contest and at such, ought not to be looked into as a change of circumstance.

5. Upon hearing learned Counsel for the parties, we find that the scope of Order XXXIX Rule 4 of the Code of Civil Procedure insofar as it pertains to vacating and/or modifying an injunction order passed on contest, is limited by the second proviso to the said provision. The said proviso stipulates that when an order of injunction has been passed after giving to a party an opportunity of being heard, the order 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 to that party.

6. The hardship now complained of by the appellants was available even at the juncture when the injunction order was passed on contested hearing on March 11, 2022. In the garb of entertaining arguments of the defendants/appellants to the effect that the plaintiffs own a small share in the property but are holding the majority co-sharers at ransom, the same would tantamount to sitting in appeal over the contested injunction application passed on March 11, 2022. The scope of Order XXXIX Rule 4 of the Code cannot be equated with that of an appeal under Order 43 of the Code against an injunction order and as such, we are unable to entertain such arguments on the merits of the injunction application. Insofar as change of circumstance is concerned, the defendants/appellants cannot take advantage of their own wrong. At the juncture when the impugned order was passed, no sanction plan was produced. Even if we construe such omission to be a bonafide error on the part of the appellants, the sanction plan was obtained only on March 15, 2023, not only during pendency of the suit but about a year after the injunction application of the plaintiffs was disposed of on contest, thereby granting injunction restraining the present appellants from making any construction. Hence, the subsequent sanction plan obtained by the defendants/appellants after the passing of the contested injunction order cannot be used as a handle to give an additional premium to the defendants/appellants, nor be construed to a change of circumstance.

7. As such, we are of the opinion that the parameters of Order XXXIX Rule 4 were not satisfied in the present case. That apart,