The court clarified the scope, applicability and ambit of Order 39, Rule 4, Civil Procedure Code, and held that the trial court has jurisdiction to entertain an application under Order 39, Rule 4, Civil Procedure Code, even if the order of injunction sought to be discharged, varied or set aside was passed by the appellate court, provided that there is a change in circumstances or undue hardship to a party.

1. On the question of scope, applicability and ambit of Order 39, Rule 4, Civil Procedure Code, two learned Judges of this Court (B. C. Varma, J. and K. M. Agarwal, J.) having differed in their opinions, the matter has been placed before me for resolving the difference.

2. The plaintiff-petitioners have filed the present suit before the Court of Civil Judge Class I, Bhopal based on their title and seeking permanent injunction against the defendant-respondents Nos. 3 and 4 for protecting their possession over the property and restraining the defendant-respondents from raising any construction thereon. According to the plaintiffs, the suit property was purchased by them under registered deed of sale dated 12-11-1948 from one Sikandar Mohammad Khan. Sikandar Mohammad Khan had acquired title under an Inayatnama (gift deed) dated 17-3-1947 executed by late Nawab Hanidullah Khan, the then ruler of Bhopal State.

3. The plaintiffs had also sought for an ad interim injunction protecting their possession over the suit land and restraining the defendant-respondents from raising any construction thereon.

4. The suit and the application under Order 39, Rules 1 and 2, Civil Procedure Code filed by the plaintiffs were contested by the defendant-respondents submitting that the suit land formed part of survey No. 90/1 area 1.40 acres of Dharampuri village which was given to the Capital Project Authority by the State Government and the defendants were constructing VI.P. guest house thereon.

5. The trial Court by its order dated 5-7-1989 rejected the application for grant of ad interim injunction as it was convinced that the plaintiffs had no prima facie case, the balance of convenience did not lie in their favour and they were the defendants and not the plaintiffs who would suffer irreparable injury by the interlocutory relief if allowed to the plaintiffs. The plaintiffs preferred an appeal to the District Court which was registered as Misc. Civil Appeal No. 54/89 and decided by the order dated 24-7-1989 (Annexure P/2). The appeal was allowed, followed by an order of remand. Vide para 13 of its order, the learned District Judge expressed an opinion that the matter in controversy could not have been satisfactorily decided unless and until there was a demarcation conducted and demarcation report brought on record so as to fix the identity of the suit land by reference to the survey number. The Court observed :

"It was, therefore, necessary to get it demarcated in the presence of the appellants according to Section 129 of the M.P.L.R. Code. How, without demarcation, one can confirmly say that the respondent No. 2 was placed in the possession of land bearing Khasra No. 90/1 area 1.48 acre only and not on the appellants plots which are parts of Khasra No. 21/3 ? How, without demarcation, one can say that the suit land is the one allotted to the respondent No. 2 ?"

How the appeal was disposed of, it would be useful to reproduce and read from the operative part of the order :

"Accordingly, the appeal preferred by the appellants is allowed. The impugned order dated 5-7-1989 is set aside. The respondents are directed to maintain status quo in respect of all the work in progress at the site towards construction of State Guest House and to apply for demarcation of land before the authority competent to do so. On receipt of the demarcation report, the lower Court may be approached by the parties for appropriate order in that light."

By way of abundant caution, it may be stated here itself that the appellate Court has not recorded any finding of its own touching the merits of the case as might thereafter have bound the trial Court.

6. On the matter being set at large before the trial Court, two important events happened which may now be noticed as they form the core of controversy arising for decision in this petition. On 29-8-1989, the defendants moved an application (Annexure R/10) under Order 26, Rule 9, Civil Procedure Code inviting attention of the trial C