Rajpal Singh vs Mithilesh Gupta - 1996 Supreme(MP) 1320

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : N.C. Jain
For the Respondent: H.K. Shukla, Lokendra Gupta

Headnote:(1) Civil Procedure Code, 1908 – – O.39 R. 4 – proviso II – – injunction duly confirmed with consent of parties – – may be varied if circumstances are changed.
       (2) Civil Procedure Code, 1908 – – O. 47 R. 1 – – review – – no error shown – – order cannot be reviewed.
       (3) Specific Relief Act, 1963 – – S. 34 – – suit for declaration simpliciter – plaintiff found dispossessed – – may claim consequential relief of possession.
        Short Note
       This is a review – petition against the order dated 20.2.1990 passed by Justice K.K. Verma, now retired. It was passed in Misc. Appeal No. 41 of 1989 preferred by the present applicant under Order 43 Rule 1 (r) of the Code of Civil Procedure.
       2. Briefly facts are that present applicant filed a suit for declaration and permanent injunction with regard to the property in question in the Court of 4th Additional District Judge, Gwalior. On 16.1.1986 an order was passed in the nature of temporary injunction directing the parties to maintain status quo and restraining the opposite party from raising any construction over the property in dispute. It is then stated that on 7.10.1987 the said order was confirmed with the consent of parties. The prayer of the opposite party was also accepted by the Court by directing the plaintiff not to alienate the land and the order of maintaining status quo was confirmed.
       3. It is then alleged that in January 1988 attempts were made by the defendants to make construction on the land in dispute. The present applicant moved an application complaining breach of order of injunction. The opposite party also made an application under Order 39 Ruie 4 C.P.C. for making necessary variation in the order of injunction earlier passed. On behalf of the defendants it was stated that his goods were stolen and have been damaged due to exposure to rain and sun. On the application of the opposite party the trial Court varied the order of injunction by permitting the defendants to raise a boundary wall and to make minimum construction to protect his property from damage. That order was passed conditionally on an undertaking given by the defendants that ultimately if he fails in the suit he would not claim cost of construction made. This order was passed on 29.3.1989. Against the order whereby the earlier order of temporary injunction was varied the present applicant preferred an appeal under Order 43, Rule 1 (1) C.P.C. registered as Misc. Appeal No. 41/89. The said appeal has been dismissed by the learned Single Judge by repelling the contentions advanced by the present applicant therein that the order confirmed with the consent of parties, could not have been varied by the trial Court. The learned Single Judge held that the Court was within its power and in its discretion could have made necessary variations in the order although it was confirmed with the consent of parties earlier. It is against this order of the learned Single Judge this review petition has been filed.
       4. Learned counsel appearing for the applicant contends that provisions of Order 39 Rule 4 do not permit the trial Court to change or vary an order of injunction passed with the consent of parties and duly confirmed. Reliance is placed on AIR 1959 MP 275, Sitaram Ahir v. Rajkunwarbai. The second contention advanced is that no such relief of variation of earlier order of injunction could be granted all the application of the defendants. Reliance is placed on a short noted decision in Nanuram v. Bheru (1984 MPWN 303).
       5. Shri H.K. Shukla, learned counsel then stood up on behalf of the intervener in the suit. The intervener is not a party to this review petition and nor he has sought permission to intervene in this review petition. We do not find that intervener has any locus standi to either support or oppose this petition. We, therefore, do not permit the counsel Shri Shukla to address this Court in this review petition.
       6. Shri Lokendra Gupta appears for respondent No.1 and opposes the review petition by contending that no ground for review of the order is made under Order 47 Rule 1 CPC. He placed reliance on AIR 1980 SC 674 Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi.
       7. Having heard learned counsel for the parties we find no merit in this review petition. The contention advanced that the order of injunction duly confirmed with the consent of the parties could not have been varied by the Court at the instance of the defendant cannot be accepted. The provisions contained in second proviso of rule 4 of Order 39 CPC, clearly permit the Court to vary an order of injunction earlier granted, if there is change in the circumstances or Court is satisfied that the order has caused undue hardship to any of the parties. In the instant case, the defendant had satisfied the Court that his goods had been stolen and part of them have been damaged due to exposure to rain and sun. There clearly, therefore, existed circumstance and grounds contemplated by second proviso to rule 4 of Order 39 CPC to permit variation of the order. We are also not impressed by other argument that no such relief could be granted at the instance of the defendant. There is no prohibition in the provision of the Code for granting such a relief. As a matter of fact second proviso to rule 4 of Order 39 CPC contains an express provision empowering the Court to grant such relief. It may be noted that the suit filed by the applicant is simpliciter for declaration. In case he had now been dispossessed it is open to him to claim consequential relief, if so advised, in the pending suit. The case cited at the Bar in Sitaram Ahir (supra) is distinguishable on facts of that case. The impugned order contains no error much less an apparent error. The review petition is therefore, misconceived and is hereby dismissed with costs. Counsel's fee Rs. 500/ – , if certified.