IMPORTANT POINT
The trial court cannot vary or interfere with the appellate court's specific directions regarding injunctions, ensuring judicial consistency and propriety.

ORDER :

(Birendra Kumar, J.)

1. Heard learned counsel for the appellant.

2. During pendency of a civil suit for declaration, possession and injunction, the learned trial Court granted ad-interim injunction under Order 39 Rule 1 and 2 C.P.C. in favour of the plaintiff-appellant. The said order was set aside by this Court on an appeal. Thereafter, the plaintiff moved an application under Order 39 Rule 4 C.P.C. before the trial Judge for discharge/vary or setting aside the order of injunction on the grounds stated in the petition. The prayer was refused by the impugned order.

3. The point for consideration herein is “whether application under Order 39 Rule 4 would be maintainable before the trial Judge to undo the effect of the order of the Appellate Court?.”

4. A brief background leading to this civil misc. appeal is that the appellant had filed Civil Original Suit No.34/1985 praying therein for a decree of declaration, injunction and possession in respect of all the four mosques (masjid) referred in the plaint.

5. Before filing of the suit, a proceeding under Section 145 Cr.P.C. was going on for the same four mosques.

6. Misc. Application No.40/1985 was filed by the plaintiff-appellant for an order of ad-interim injunction. Another application was filed for appointment of Receiver under Order 40 Rule 1 C.P.C. In the proceeding under Section 145 Cr.P.C., the Additional District Magistrate, Udaipur City attached Moiyadpura mosque under Section 146(1) Cr.P.C. vide order dated 30.05.1984 and appointed the Station House Officer as Receiver.

7. While dealing with application under Order 39 Rule 1 and 2 C.P.C., the learned District Judge vide order Dated 14.11.1991 appointed Receiver in respect of Vazirpura mosque, Rasoolpura mosque and Khanpura mosque to the Sub-Divisional Magistrate.

8. In the matter of Moiyadpura mosque which was already attached under Section 146 Cr.P.C., the trial Court while disposing of application under Order 39 Rule 1 and 2 C.P.C. directed that neither party shall carry out any repair work without permission of the Court.

9. The order was challenged before this Court in Civil Misc. Appeal Nos.351/1991 and 352/1991. The appeals were disposed of vide order dated 20.01.1992 with following conclusions and directions :

“19. In view of this, the findings so arrived at by the learned District Judge are not based on good reasons and deserve to be set aside and the application filed under order 39 Rule 1 and 2 and Order 40 Rule 1 are dismissed and accordingly I allow this appeal (351/91) and set aside the order of the learned Dist. Judge/Udaipur dt. 14.11.91, granting interim relief in appointing receiver for three disputed mosques viz. Vazirpura, Khanpura and Rasoolpura. However, the appellants will not change the original structure of these mosques.

20. So far as the other appeal No.352/91 is concerned, the impugned order dt. 14.11.91 of the learned Dist. Judge is modified to the extent that the receiver appointed in proceedings Under Section 145 Cr.PC (case No.365/84) shall continue. The receiver will be free to get the repaire done without altering the original structure of the Boiyatpura mosque, so that no party may face any difficulty in offering their prayer. He will submit his report within four months as per the order of the learned Dist. Judge. Consequently, this appeal stands disposed of. The parties are left to bear their own costs.”

10. Thus, by aforesaid modification the Receiver was allowed free hand to get the repairing done without alteration in the original structure of the Moiyadpura mosque.

11. The appellant filed an application under Order 39 Rule 4 C.P.C. for a direction/permission to allow demolition and reconstruction of Moiyadpura mosque as it is already dilapidated.

12. By the impugned order dated 09.09.2024 passed in Misc. Case No.129/2023 on the application under Order 39 Rule 4 C.P.C., the trial Court was of the view that the application was not maintainable before it as the injunction order passed by t