1. - Heard learned counsel for the parties.

1. The appellant is aggrieved against the order dated 28.6.2008 by which the trial court allowed the respondent's application (who became party in the suit subsequently) filed under Order 39 Rule 4 CPC.

2. Brief facts of the case are that the appellant-plaintiff Prabhu Ram filed the suit for declaration and injunction against the State and the Mining Engineer, Makarana. In the said suit, the notices were issued to the defendants State and the Mining Engineer. The appearance was put in on behalf of those defendants and interim order to maintain status quo was passed by the trial court. On 17th Sept., 2004 the counsel for the defendants i.e., State and the Mining Department submitted before the trial court that the respondents are ready to maintain the status-quo. On this concession from the defendants, the trial court passed four lines order on the basis of concession of the counsel of the State and the Mining Department and passed the order to maintain status quo.

3. The applicants-respondents nos. 3 to 11 submitted an application under Order 1 Rule 10 CPC on 21.4.2004 i.e., before the said order dated 17th Sept., 2004 was passed by the trial court for being impleaded as party. The injunction application in the manner referred above was allowed without deciding the respondent's application under Order 1 Rule 10 CPC. The applicants were impleaded as party by order of the trial court in main suit by order dated 19th May, 2008. The interim order dated 17th Sept., 2004 remained as it is and ultimately, the newly added parties submitted the present application under Order 39 Rule 4 read with Section 151 CPC and prayed that the order dated 17th Sept., 2004 may be set aside. In addition to pleading that they were not party in the main suit as well as in misc proceedings and the trial court granted injunction. Newly added parties pleaded that they filed another suit no.74/04 against the State and also submitted temporary injunction application and the said injunction application was allowed by the court vide order dated 4th May, 2007 restraining the present plaintiff-appellant from obstructing way to the mine of the newly added party in the suit. The said order was challenged by preferring the appeal by the present appellant-plaintiff wherein interim order was passed by the appellate court on 4th May, 2007 and according to learned counsel for the appellant, now the appeal has been allowed. The newly added defendants pleaded in the application under Order 39 Rule 4 CPC that the plaintiff is bent upon to obstruct the way in the garb of interim order dated 17.9.2004 which is not against the respondent and, therefore, they have to move this application under Order 39 Rule 4 CPC.

4. The application was opposed by the plaintiff-appellant, but the trial court after observing that the trial court should not have confirmed the interim order without deciding the application filed by the applicants-(newly added defendants) for being impleaded as party and set aside the interim order by impugned order.

5. According to learned counsel for the appellant the interim order was passed as back as on 17th Sept.,2004 and for three good years the respondents did not choose to challenge the order and because of this reason only, the respondents' application filed under Order 39 Rule 4 CPC should have been dismissed. According to learned counsel for the appellant, the interim order was passed was in the knowledge of the defendants- respondents and there is no new circumstances shown by the defendants after passing of the order dated 17th Sept., 2004 so as to have any necessity for setting aside of the order dated 17th Sept., 2004. Learned counsel for the appellant relied upon the judgment of this court delivered in Laxmi Devi v. Dula Ram reported in 1991(1) WLC (Raj.) 656 wherein this Court held that temporary injunction if passed without giving notice to other party than the order can be discharged, varied,