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MadhyaPradeshHighCourt
Ravishankar And Anr. vs Viith Additional District Judge ... on 31
January,1994
Equivalentcitations:1994(0)MPLJ783
Bench:RLahoti,BVerma,KAgrawal
ORDER
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.)havingdifferedintheiropinions,thematterhasbeenplacedbeforeme
forresolvingthedifference.
2.TheplaintiffpetitionershavefiledthepresentsuitbeforetheCourtofCivilJudge
Class I, Bhopal based on their title and seeking permanent injunction against the
defendantrespondentsNos.3and4forprotectingtheirpossessionovertheproperty
and restraining the defendantrespondents from raising any construction thereon.
Accordingtotheplaintiffs,thesuitpropertywaspurchasedbythemunderregistered
deed of sale dated 12111948 from one Sikandar Mohammad Khan. Sikandar
Mohammad Khan had acquired title under an Inayatnama (gift deed) dated 173
1947executedbylateNawabHanidullahKhan,thethenrulerofBhopalState.
3. The plaintiffs had also sought for an ad interim injunction protecting their
possessionoverthesuitlandandrestrainingthedefendantrespondentsfromraising
anyconstructionthereon.
4.ThesuitandtheapplicationunderOrder39,Rules1and2,CivilProcedureCode
filed by the plaintiffs were contested by the defendantrespondents 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
defendantswereconstructingVI.P.guesthousethereon.
5.ThetrialCourtbyitsorderdated571989rejectedtheapplicationforgrantofad
interiminjunctionasitwasconvincedthattheplaintiffshadnoprimafaciecase,the
balanceofconveniencedidnotlieintheirfavourandtheywerethedefendantsand
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
whichwasregisteredasMisc.CivilAppealNo.54/89anddecidedbytheorderdated
2471989(AnnexureP/2).Theappealwasallowed,followedbyanorderofremand.
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
therewasademarcationconductedanddemarcationreportbroughtonrecordsoas
to fix the identity of the suit land by reference to the survey number. The Court
observed:

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"It was, therefore, necessary to get it demarcated in the presence of the appellants
accordingtoSection129oftheM.P.L.R.Code.How,withoutdemarcation,onecan
confirmlysaythattherespondentNo.2wasplacedinthepossessionoflandbearing
KhasraNo.90/1area1.48acreonlyandnotontheappellantsplotswhichareparts
ofKhasraNo.21/3?How,withoutdemarcation,onecansaythatthesuitlandisthe
oneallottedtotherespondentNo.2?"
Howtheappealwasdisposedof,itwouldbeusefultoreproduceandreadfromthe
operativepartoftheorder:
"Accordingly,theappealpreferredbytheappellantsisallowed.Theimpugnedorder
dated571989issetaside.Therespondentsaredirectedtomaintainstatusquoin
respect of all the work in progress at the site towards construction of State Guest
Houseandtoapplyfordemarcationoflandbeforetheauthoritycompetenttodoso.
On receipt of the demarcation report, the lower Court may be approached by the
partiesforappropriateorderinthatlight."
Bywayofabundantcaution,itmaybestatedhereitselfthattheappellateCourthas
not recorded any finding of its own touching the merits of the case as might
thereafterhaveboundthetrialCourt.
6. On the matter being set at large before the trial Court, two important events
happenedwhichmaynowbenoticedastheyformthecoreofcontroversyarisingfor
decision in this petition. On 2981989, the defendants moved an application
(AnnexureR/10)underOrder26,Rule9,CivilProcedureCodeinvitingattentionof
the trial Court to the observations made by the District Court and seeking
demarcationofthesuitlandsoastodeterminewhetheritconstitutedpartofsurvey
No. 90/1 or of 21/3. The trial Court directed the commission to be issued. On 69
1989, the defendants moved yet another application (Annexure P/3) styled as one
under Order 39, Rule 4, Civil Procedure Code. It was stated in the application that
the plaintiffs had based their case on the Inayatnama (gift deed) dated 1731947
followingbydeedofsaledated12111948vestingtitleinthem,butonasearchand
inspectionmadeoftherecordsoftheRegistrarofDeeds,Bhopal,itwasfoundthat
the Inayatnama and the saledeed were both fabricated documents as they were
neverexecutedandregisteredinthemannerallegedintheplaint.Inasmuchasthese
factswerenotintheknowledgeofthedefendantswhentheorderofinjunctionwas
passedearlier,theyprayedthattheCourtbepleasedtotakeintoconsiderationthese
facts supported by the documents which they were now placing on record and set
aside the interim order maintaining status quo passed by the appellate Court as it
was causing serious and irreparable every day prejudice to the defendants. This
application remained pending for consideration and in between the Commissioner
appointedbytheCourtexecutedthecommissionandsubmitteditsreportdated111
1989 (Annexure R/12), the conclusions of which report were against the plaintiffs
and supported the defendants' plea that the land on which the defendants were
raising construction had belonged to the State Government handed over to the

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defendantsfortheproject.
7.Afterhearingthepartiesafresh,on411990,thetrialCourtdisposedofthematter
astothegrantofadinteriminjunctionbypassinganorderafresh(AnnexureP/5).
The opening sentence of the order states the application under Order 39, Rule 4,
Civil Procedure Code being disposed of by that order. The closing part speaks the
interimorder,directingstatusquotobemaintained,beingvacatedbythatorderin
viewofthesubsequentchangedcircumstances.Imayhastentoobservethatitisthe
phraseology used by the trial Court which has really given rise to this serious
controversywithwhichthisCourtisnowseized.Oneneedremindoneselfofthewell
settled position of law that what has to be determined is the real jurisdiction
exercisedbytheCourtwithoutregardtothelabelaffixed.
8.TheplaintiffspreferredanappealtotheDistrictCourtagainsttheorderofthetrial
Court dated 411990. Vide order dated 2411990 (Annexure P/6), the appeal filed
bytheplaintiffshasbeendismissed.On2911990,theplaintiffshavepreferredthis
petitionunderArticle227of the Constitution of India. Their grievances are mainly
two : Firstly that on the facts stated in the application dated 691989 (Annexure
P/3), the trial Court could not have exercised jurisdiction under Order 39, Rule 4,
Civil Procedure Code, and secondly, that the order to maintain status quo having
beenpassedbytheappellateCourt,itwastheappellateCourtaloneandnotthetrial
CourtwhichwascompetenttoentertaintheapplicationunderOrder39,Rule4,Civil
ProcedureCode.
9.Earlier,whenthematterwasheardbytheDivisionBench,B.C.Varma,J.wasof
the opinion that the order of the appellate Court direeting status quo to be
maintained was certainly an order granting temporary injunction and when the
applicationunderOrder39,Rule4,CivilProcedureCodewasmoved,anapplication
forissuanceofcommissionwasnotevenmadethatiswhyitwouldbedeemedthat
the trial Court had varied the order of the appellate Court in exercise of power
conferredbyOrder39,Rule4,CivilProcedureCode.Thedocumentsreliedonbythe
plaintiffswhichweresubsequentlyallegedbythedefendantsasforgedandfabricated
were considered by the Court while passing the earlier order and hence the prayer
madebythedefendantswasincapableofbeingentertainedunderOrder39,Rule4,
CivilProcedureCode.Accordingtohim,thepetitiondeservedtobeallowedquashing
the orders of the trial Court and appellate Court (Annexures P/5 and P/6) and
rejecting the application under Order 39, Rule 4, Civil Procedure Code filed by the
defendants. K. M. Agrawal, J. was of the opinion that the injunction passed by the
appellate Court was passed for the suit and not for any appeal and hence the trial
Court was not powerless to entertain the application under Order 39, Rule 4, Civil
ProcedureCode.Healsoheldthatdiscoveryofsuchfacts,asofwhichthedefendants
werenotawareearlier,providedagroundforexerciseofjurisdictionunderOrder39,
Rule4,CivilProcedureCode.Inaddition,therewasthereportoftheCommissioner.
On such material available, the trial Court was competent to exercise jurisdiction
under Order 39, Rule 4, Civil Procedure Code and hence its order dismissing the

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plaintiffs' application under Order 39, Rules 1 and 2, Civil Procedure Code and
discharging the ad interim injunction maintaining status quo could not be found
faultwith.
10.Order39,Rule4,CivilProcedureCodeprovidesasunder:
"ORDERXXXIXTEMPORARYINJUNCTIONSANDINTERLOCUTORYORDERS.
..................
R.4.Orderforinjunctionmaybedischarged,variedorsetaside.Anyorderforan
injunctionmaybedischarged,orvaried,orsetasidebytheCourt,onanapplication
madetheretobyanypartydissatisfiedwithsuchorder:
Provided that if in an application for temporary injunction or in any affidavit
supporting such application, a party has knowingly made a false or misleading
statementinrelationtoamaterialparticularandtheinjunctionwasgrantedwithout
givingnoticetotheoppositeparty,theCourtshallvacatetheinjunctionunless,for
reasonstoberecorded,itconsidersthatitisnotnecessarysotodointheinterestsof
justice:
Providedfurtherthatwhereanorderforinjunctionhasbeenpassedaftergivingtoa
partyanopportunityofbeingheard,theordershallnotbedischarged,variedorset
aside on the application of that party except where such discharge, variation or
setting aside has been necessitated by a change in the circumstances, or unless the
Courtissatisfiedthattheorderhascausedunduehardshiptothatparty."
TheopeningpartofRule4usestheterms"discharged,variedorsetaside"which
coverallpossibleeventualitiesinwhichanorderofinjunctionoriginallyissuedmay
betamperedwith.WhatisenactedbySecondProvisoisnothingbutareflectionof
the principles of res judicata/constructive res judicata and issue estoppel. In the
leadingcaseofArjunSinghv.MohindraKumar,AIR1964SC993,theirLordshipsof
theSupremeCourthavesaid:
"ThoughSection11oftheCivilProcedureCodeclearlycontemplatestheexistenceof
two suits and the findings in the first being res judicata in the later suit, it is well
established that the principle underlying it is equally applicable to the case of
decisionsrenderedatsuccessivestagesofthesamesuitorproceeding."
xxxxxxxxxxxxxxxxxx"Interlocutoryordersareofvariouskindssomelikeordersof
stay, injunction or receiver are designed to preserve the status quo pending the
litigationandtoensurethatthepartiesmightnotbeprejudicedbythenormaldelay
which the proceedings before the Court usually take. They do not, in that sense,
decideinanymannerthemeritsofthecontroversyinissueinthesuitanddonot,of
course, put an end to it even in part. Such orders are certainly capable of being
altered or varied by subsequent applications for the same relief, though normally
onlyonproofofnewfactsornewsituationswhichsubsequentlyemerge.Astheydo

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not impinge upon the legal rights of parties to the litigation the principle of res
judicata does not apply to the findings on which these orders are based, though if
applications were made for relief on the same basis after the same has once been
disposed of, the Court would be justified in rejecting the same as an abuse of the
processofCourt."
xxxx xxxx xxxx "But what we are concerned with is slightly different and that is
whetherthesameCourtisfinallyboundbythatorderatlaterstagessoastopreclude
its being reconsidered. Even if the rule of res judicata does not apply, it would not
followthatoneverysubsequentdayonwhichthesuitstandsadjournedforfurther
hearing, the petition could be repeated and fresh orders sought on the basis of
identicalfacts.Theprinciplethatrepeatedapplicationsbasedonthesamefactsand
seeking the same reliefs might be disallowed by the Court does not however
necessarilyrestontheprincipleofresjudicata."
Second Proviso to Rule 4 of Order 39, Civil Procedure Code appears to have been
enacted by way of abundant caution. Even if this provision would not have been
there, the Court would not have been justified in tampering with or taking up for
reconsideration the orders of injunction passed once after affording opportunity of
hearingtoboththepartiesmerelybecauseanotherapplicationwasfiledunlessand
untiltherewerenewfactsornewsituationsemergingsubsequently.Forallpractical
purposes,thereisnodifferencebetweenthephraseologyusedbytheirLordshipsin
Arjun Singh's case (supra) "on proof of new facts or new situations which
subsequently emerged" and the phraseology used in second Proviso to Rule 4
"necessitatedbyachangeinthecircumstancesoronsatisfactionthattheorderwas
causingunduehardshiptoaparty."
11. Whenever a prayer is made under Order 39, Rule 4, Civil Procedure Code, the
Court has to pose itself with a question whether there is a, change in the
circumstancesorwhethertheorderoftheCourtiscausingunduehardshiptoaparty
?Thelaterpartofthequestion,needlesstosay,wouldinvolveconsiderationofonly
suchfactorscausingunduehardshipashavecomeinexistenceafterthepassingof
the order of the Court or which factorswould be aconsequenceof the order of the
Court itself. So is the case with the change in the circumstances. Exercising its
jurisdiction under Rule 4 abovesaid, the Court may with advantage draw upon the
principlesrevolvingaroundExplanationIVtoSection11oftheCivilProcedureCode
and ask itself whether the pleas raised in the application under Rule 4 might and
oughttohavebeenraisedpriortothepassingoftheorder?Iftheanswerbe'yes',the
Courtmayrejecttheapplication.Iftheanswerbeinthenegative,theCourtmayvery
wellentertaintheapplicationanddisposeofthesameonmerits.
12.TheabovesaidviewfindsaccordancewiththeviewtakenbythisCourtinSitaram
Madanv.Rajkunwarbai,1959MPLJ532,whereinitwasheld:
"Order39,Rule4oftheCodeofCivilProcedurecanbeinvokedonlywhenanurgent

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orderexpartehasbeenpassedunderRule3,orwhenaninjunctionalreadyinforce
hasowingtofreshcircumstancesbecomeinappropriate.Whenhowever,byhisown
laches, the party against whom an order of injunction is made, after notice to him,
hasomittedtofilehisreplytotheapplicationfortemporaryinjunctionattheoriginal
hearing, he cannot later on move the Court under Rule 4 and have the matter
reopenedandreheardonmaterialwhichwasavailabletohimandcouldhavebeen
urgedattheoriginalhearing."
The decision of the Madras High Court in Govind Ramanui v. Vijiaramaraju, AIR
1929Mad.803wasreliedonholding:
"Rule4isnotintendedtosetatnaughttheordinarycursuscuriaethat,onceaCourt
hasdecidedamatteraftergivingeachsideanopportunityofbeingheard,itsorderis
finalandbindingonitselfasmuchasontheparties,andcannotbereopenedexcept
on the presentation of some new matter not available when the original order was
passed."
13. Applying the abovesaid test to the facts of the case at hand, the trial Court was
justifiedinexercisingitsjurisdictionunderOrder39,Rule4,CivilProcedureCodeif
it was satisfied that by exercise of due diligence, the defendants could not have
detectedthefalsityandfabricationofdocumentsoftitlereliedonbytheplaintiffs.If
the documents put forth by the plaintiffs were registered documents on their face,
andalsoappearingtobeolddocuments,ordinarily,thesuspicionofthedefendants
would not have been aroused so as to put them on enquiry and persuade them
embarkinguponanindepthscrutinyorinvestigationofthedocumentsbeforefiling
reply to the application under Order 39, Rules 1 and 2 of the Civil Procedure Code
whichinitsverynaturerequiresasummaryandexpeditioushearing,moresowhen
thestagehadnotyetarrivedforrecordingevidenceandalsowherethedefendants
were the State and its Officer having impersonal interest in litigation. Falsity and
fabricationofplaintiffs'documentsoftitle,havingbeendetectedafterthepassingof
the order, can in appropriate cases amount to 'a change in the circumstances'
attractingthejurisdictionoftheCourtunderRule4abovesaid.
14.Whentheappellatecourtpassesanorderofinjunctionwhilefinallydisposingof
the appeal before it, the order stands substituted in place of the order of the trial
Court. The order is passed not for the purpose of appeal, nor to remain operative
duringthehearingoftheappealitisanorderpassedforthepurposeofthesuitand
to terminate with the decision of the suit. An application under Order 39, Rule 4,
Civil Procedure Code can appropriately be dealt with by the trial Court though the
orderofinjunctionsoughttobedischarged,variedorsetasidebeonepassedbythe
appellateCourt.
15. There is yet another angle of approaching at the problem posed. The operative
partofappellateorderdated2471989clearlyindicatestheorderofthetrialCourt
havingbeensetaside.Inviewoftheorderofremand,thematterwastobeheardand

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decided afresh by the trial Court. The order directing maintenance of status quo
passed by the appellate Court was an interregnum merely referable to inherent
power of the Court under Section 151, Civil Procedure Code so as to see that the
poweroftheCourttodisposeoffinallytheapplicationunderOrder39,Rules1and
2, Civil Procedure Code was not frustrated. If status quo in respect of the work in
progress at the suit site would not have been directed to be maintained and if the
construction work would have stood completed by the time occasion arose for
deciding the application for injunction finally, what would have remained to be
decided ? The Court has an inherent power to make such orders, is a principle
deducibleandsupportablefromthelawlaiddownbytheirLordshipsoftheSupreme
Court in Manoharlal v. Hiralal, AIR 1962 SC 527. The fact remains that the order
dated2491989oftheappellateCourtwasanorderofremand.Ithasalreadybeen
saidhereinabovethattheappellateCourthadnotdecidedbyexpressinganyopinion
on merits on any point of controversy even at that stage so as to preempt the
jurisdiction of the trial Court deciding application for the grant of injunction on
meritsandonallpointsarisingfordecision.Anorderofremandimpliesareversalof
thedecisionofthelowerCourtandreopensthewholecasefordeterminationafresh
except in regard to matters decided by the order of remand. The Judge in lower
Court can come to conclusions different from those arrived at by himself or his
predecessor previously in respect of matters not touched by order of remand. [See
:KaluramandAnr.v.MehtabBaiandAnr.,1958MPLJ704=AIR1959MP181and
Ramgulzarilalv.Bhanuprasad,1941NLJ117=AIR1941Nag.188].Inasmuchasthe
trialCourtwasdirectedtoConsideranddecidethematterastograntofadinterim
injunctionafresh,ofcoursesubjecttoreceiptofthedemarcationreportasdirected
by the appellate Court, really speaking, there was no occasion for moving an
application under Order 39, Rule 4 of the Civil Procedure Code. Even without that
application it was open to the defendantrespondents to have demonstrated before
the trial Court the falsity or fabrication of the documents of title put forth by the
plaintiffsbecausethatwasnotapointdecidedbytheappellateCourt.Theconfusion
wascreatedbecauseofthedefendantshavingstyledtheirapplicationdated691989
as one under Order 39, Rule 4, Civil Procedure Code and the confusion was worst
confounded when the trial Court also framed its order dated 411990 (Annexure
P/5)asifitwasanorderunderOrder39,Rule4,CivilProcedureCode.Ifthatlabel
isremoved,theorderdated411990wouldshowitsrealfaceofitsbeinganorder
finally disposing of an application under Order 39, Rules 1 and 2, Civil Procedure
Codepureandsimple.Completereadingoftheorderdated2471989demonstrated
the inability felt by the learned District Judge in deciding the matter as to grant of
injunction finally in the absence of demarcation and hence without expressing any
finalopiniononanypointsofcontroversyoronanyofthethreeprinciplesforgrant
ofinjunctionhadpostponedbymakingoverthetaskoffinaladjudicationtothetrial
Courttobedoneonreceiptofresultsofdemarcation.
16.Fortheforegoingreasons,IamoftheopinionthatB.C.Varma,J.wasnotright
in the opinion which he formed and expressed in his order. I agree with the view

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takenbyK.M.Agrawal,J.inhisorderthoughforreasonslittleatvariancewiththe
reasonsassignedbyhimandholdthepetitionunderArticle227oftheConstitution
filedbythepetitionersliabletobedismissed.However,Iwouldliketomakeitclear
thatIhavenotexpressedagreementwiththeviewexpressedbyK.M.Agrawal,J.in
para 14 of his order for prosecution of plaintiffs under Sections 193, 196, Indian
PenalCode.Theopinionexpressedbyhimshouldhavebeenbetterlefttobeformed
bythetrialJudgeatanappropriatestage.
17.LetthematterbenowplacedbeforetheDivisionBench.

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