Undue hardship and change in circumstances can warrant the discharge, variation, or setting aside of an order of injunction under Order 39 Rule 4 of the Code of Civil Procedure.

Manmohan Singh, J.

1. By this order I shall dispose of the present application filed by the Defendant No. 3 in the present suit under Order 39 Rule 4 read with Section 151 Code of Code of Civil Procedure seeking variation/ modification/ vacation of the orders dated 29.07.2009 and 10.11.2009 passed in the present case.

2. The brief facts leading up to the filing of the present application are that the Plaintiff is a retired government employee whose wife and younger son are dependent upon him. As per the Plaintiff, the Defendant Nos. 1 and 2, who are his son and daughter-in-law, in conspiracy with each other and without informing the Plaintiff, got the sale deed of the property bearing No. 92, 3rd Floor, Sector-9, Pocket-1, Dwarka, New Delhi, executed in favour of the Defendant No. 1, despite the fact that the entire consideration of the said property was paid by the Plaintiff out of his retirement benefits and subsequently sold the said property to the Defendant No. 3.

3. It is stated by the Plaintiff, that the he came to know of this fraudulent conduct of the Defendant Nos. 1 & 2 only in the first week of July 2007 when they asked him, his wife and younger son to vacate the suit property and disclosed that they have entered into an agreement to sell with the Defendant No. 3 and therefore, the vacant possession of the suit property has to be handed over to him on the registration of the sale deed.

4. Further, it is stated that the Defendant Nos. 1 & 2 after dishonestly selling the suit property for a consideration of Rs. 30,00,000/- to the Defendant No. 3 have purchased another flat on 30.07.2007 at a consideration of Rs. 16,00,000/-bearing No. 375, 3rd Floor, Pocket-B, Sector-13, Dwarka, New Delhi where both of them are presently residing. After moving to their new flat, the Defendant Nos. 1& 2 along with Defendant No. 3 tried to forcibly dispossess the Plaintiff and his family from the suit property, but, could only take possession of two rooms where they have put their locks.

5. Therefore, the Plaintiff filed the present suit for cancellation of the sale deed dated 30.07.3007 and mandatory injunction.

6. On 29.07.2009, when the matter was listed for the first time, this Court passed an ex-parte order in I.A. No. 9466 filed by the Plaintiff Order 39 Rules I and 2 read with Section 151 CPC. The relevant extract of the said order reads as follows:

Accordingly, it is directed that till the next date of hearing the Defendants are restrained from selling, transferring, alienating, disposing of or creating third party rights in any manner whatsoever in the property bearing No. 92, 3rd Floor, Sector-9, Pocket-1, Dwarka, New Delhi and Flat No. 375 (3rd Floor) Pocket-B, Sector-13, Dwarka, New Delhi. Status quo shall also be maintained by the parties. This is subject to Plaintiff complying with Order XXXIX Rule 3 within a period of one week from today.

7. When the matter was listed before Court on 10.11.2009, the counsel for the Defendant No. 3 stated that he has no objection to order dated 29.07.2007 being made absolute if it is clarified that the said order will not come in way the of his suit before the ADJ, Tis Hazari Courts, Delhi. On 10.11.2009 the court passed the order making the order dated 29.07.2007 absolute. The relevant extract of the order dated 10.11.2009 reads as follows.

I have heard the learned Counsel for the parties. It is clarified that the District Court may proceed with the Defendant No. 3's suit in its own way; however, if a final order is passed in the application under Order 12 Rule 6 of the CPC, it shall not be given effect, during the subsistence of the interim order passed in the present suit. Accordingly, order dated 29.07.2009 is made absolute. However, liberty is given both parties to move the court for variation, if found necessary, in the event a final order is passed by the District Court in the application under Order 12 Rule 6 of the Code of Code of Civil Procedure filed in Defendant No. 3's Suit No