An injunction order passed after giving notice to the opposite party cannot be termed as an ex parte order.

N.K. Jain, J.-This is a defendant’s revision against the order of learned Civil Judge, Parbatsar dated 9-5-9 1 whereby he has affirmed the order dated 20-10-87 passed by the learned Munsif and Judl. Magistrate, Makrana in the matter of Order 39, Rule 4 read with Section 151, CPC.

2. In brief the facts are that the plaintiff-non-petitioner filed a suit for declaration and permanent injunction 011 9-2-87 in the Court of Munsif and Judicial Magistrate, Makrana with the allegation that quarry No. 142/3 belongs to his father late Arjun Rao, who took it from Government on lease. The petitioner was minor at the time of death of his father and his elder brother was managing the quarry who got the quarry mutated in his name, now deceased. On 1-2-74 he transferred the quarry in the name of his wife. The petitioner requested for partition of his half share, but criminal proceedings under Section 107, Cr.P.C. were initiated. An application for temporary injunction was also, filed and in alternative it was prayed that in case no injunction is issued receiver may be appointed for at least half share notice was issued on 19-2-87, one Dilip Singh, advocate appeared on behalf of the petitioner and he sought time to file written statement and the reply. But on 9-7-87, the advocate of the defendant-petitioner pleaded no instructions on behalf of the defendant. On 15-7-87, the learned trial Court ordered that till the disposal of the suit the defendants are restrained from interfering in the excavation work of the plaintiff On 23-7-87, the defendant-petitioner moved an application under Order 39, Rule 4 read with Section 151, CPC along with some documents alleging that Laxmi Devi was seriously ill on 9-7-87 and an opportunity may be given to them as they could not attend the Court and the order be set aside. It was submitted that the lease was renewed in the name of one Birdha Ram upto the year 1969 but on 13-7-79 this quarry was declared as Khalsa and from the year 1972-73, it remained unoccupied. It was also alleged that quarry No. 142/3 belongs to defendant. On 1-2-74 a lease was granted in her favour by the mining department. It was also alleged that the plaintiff is not at all in possession of the quarry and he is not entitled to excavate half of it. It was prayed that in case work of excavation to the third party is allowed to carry out the defendant will suffer great loss. The learned Judicial Magistrate after hearing both the parties rejected the application on 20-10-87. An appeal was preferred but the same was also dismissed on 9-5-9 1. Hence, this revision.

3. 1 have heard learned Counsel for the parties, and perused the case law as well as the impugned orders.

4. Mr. A. L. Chopra, learned Counsel for the petitioner has submitted that the learned lower Courts have erred in saying that the scope of Order 2, Rule 39, Rule 4 is limited. It has been submitted that the learned Courts below have erred in not considering the merits of the case in the light (of) the documents. Mr. Chopra has also submitted that the order of injunction is not maintainable because great hardship would be caused to the defendant. He has placed reliance on Puma Chandra Das vs. Smt. Bishnu Priya Mohapatra, AIR 1985 NOC 59, Bairaang Rai VS. Ismail Mian, AIR 1978 Patna 339 (FB), Chhaganlalvs. Nanhe Shah, 1982 Raj LW 519: (AIR 1983 Raj 6) and Abdul Shakoor Sahib vs. Umachander, AIR 1976 Mad 350.

5. Mr. B. L. Purohit, learned Counsellor the plaintiff non-petitioner has submitted that there was no change of circumstances and the order was passed after giving several opportunities to the petitioner and the points which were neither raised nor argued before the learned trial Court cannot be raised before this Court and the impugned order calls for no interference. He has placed reliance on Naba Kishore Das vs. Umakanta Mohapatra, AIR 1985 Orissa 222.

6. In Puma Chandra Das vs. Smt. Bishnu Priya Mahapatra, AIR 1985 NOC 59(Orissa) ad interim order of injunction was