Orders of stay or injunction can be altered by subsequent applications based on new facts or situations, as established by the Hon’ble Apex Court in the case of Arjun Singh Vs. Mohindra Kumar & Ors [AIR 1964 SC 993].

JUDGMENT

1. The present appeal has been filed against the order dated 07.07.2021 passed by the Additional District Judge No.1, Hanumangarh whereby the application under Order XXXIX Rules 1 & 2, CPC as preferred by the plaintiffs/respondents has been allowed.

2. The case of the appellants/defendants is that earlier after filing of the suit for specific performance of contract, the plaintiffs preferred an application under Order XXXIX Rules 1 & 2, CPC with a prayer that the property in question be not alienated and no charge be created on the said property. During the pendency of the said application, two subsequent applications under Section 151 CPC were preferred for restraining the defendants from raising construction on the disputed land. The first application under Order XXXIX Rules 1 & 2, CPC was finally decided by the Court on 05.04.2021 whereby the defendants were restrained from alienating as well as creating any charge over the property in question. The said order was silent as to raising of the construction by the defendants meaning thereby the learned Court had rejected the prayer of the plaintiffs for restraining the defendants from raising any further construction.

3. Learned counsel for the appellants submitted that the order dated 05.04.2021 was never appealed against and therefore, the same has become final for all purposes. After two months of the decision on the said application, the second application under Order XXXIX Rules 1 & 2, CPC has been preferred by the plaintiffs on the same ground, on the same cause of action and also for the same relief. Counsel submitted that the same could not have been entertained by the Court below and the relief as granted could not have been granted. In support of his submission counsel relied upon the Hon’ble Apex Court judgment passed in the case of Arjun Singh Vs. Mohindra Kumar & Ors; Civil Appeal No.768/1963 [AIR 1964 SC 993] and the Karnataka High Court judgment passed in the case of K.C. Chandrashekar Raju Vs. D. Venkatesh & Ors: W.P. No. 378/2006 [ILR 2008 Karnataka 1660].

4. Per contra, learned counsel for the respondents submitted that earlier when the applications under Section 151 CPC were preferred by the respondents, ad interim orders on the same were passed by the Court and the construction as sought to be raised by the defendants was restrained. Further when the construction was not stopped by the defendants, the police assistance was provided by orders of the Court and the construction was finally stopped. In pursuance to the said orders, the construction was stopped and therefore when the first application under Order XXXIX Rules 1 & 2, CPC was decided, no grievance regarding the construction remained and therefore, no order was required to be passed by the court restraining defendants for raising any further construction. Counsel submitted that it was only because of the subsequent fact when in the month of June, 2021 the defendants started raising construction, that a fresh cause of action arose to the plaintiffs and therefore, the second application under Order XXXIX Rules 1 & 2, CPC was preferred which cannot be said to be based on the same set of facts. The second application was based on the subsequent facts which definitely was a new cause of action to the plaintiffs and the trial Court rightly exercised its jurisdiction in entertaining and allowing the same.

5. Heard learned counsel for the parties and perused the material available on record.

6. A perusal of the second application under Order XXXIX Rules 1 & 2, CPC preferred by the plaintiffs makes it clear that in the said application the averments regarding the earlier applications being moved, further applications under Section 151 CPC being moved and ad interim orders being passed by the Court on the same, have specifically been made. It is not that the said facts had been concealed from the Court and the second application was preferred for the same relief.

7. A perusal of the impugned order makes it