Kapil Bhatia And Ors. vs Delhi Express Travels Pvt. Ltd. ...
1997 Latest Caselaw 659 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) This Order will dispose of an application, filed on behalf of defendants, under Order Xxxix, Rule 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'). The facts, relevant for the disposal of the above mentioned application, lie in a narrow compass. The plaintiffs have filed a suit for permanent injunction against the defendants, named above, praying that a decree for perpetual injunction be passed and the defendants be restrained by an injunction from breaching the agreement dated the 30th September, 1991 and removing the plaintiffs from the Board of defendant No. 1 until they have obtained necessary no objection certificate/released from the Banks/Airlines at which point of time the plaintiff would submit simultaneous resignation. It has also been prayed that the defendants be restrained from surrendering or parting with the possession of any of the four tenancy premises of the Company or transferring or encumbering the six real estates of the Company in any manner.

(2) Alongwith the plaint, the plaintiffs have also filed an application ( Ia 14891 / 91) under Order 39, Rules 1 and 2 read with Section 151, Civil Procedure Code seeking an ex-parte interim relief. The above said application alongwith the suit, came up for hearing before the learned predecessor of this Court for the first time on 13th December, 1991 and the learned predecessor of this Court vide order of even date was pleased to pass the following orders on the above said application : Mr. Menon accepts notice on behalf of defendants 1,14,15 and 16. Mr. Menon gives undertaking on behalf of his clients that immovable properties and tenancy rights of the Company as detailed in para 11 of the plaint shall not be encumbered, surrendered or transferred till the next date of hearing. Mr. Menon further states that his clients will make all possible bona fide attempts to get personal guarantees of the plaintiffs with various Banks and Air Lines released. In view of this stand of the defendants, Mr. Arun Mohan states that plaintiffs 1 and 3 will tender resignation from the Board of Directors of defendant No. 1 Company today itself."

(3) After hearing the learned Counsels for both the parties and also after taking into consideration the facts and circumstances of the case, the learned predecessor of this Court vide order dated the 9th May, 1994 finally disposed of the above said application of the plaintiffs. The above said order, passed by the learned predecessor of this Court on 9th May, 1994 finally disposing of plaintiff's application ( Ia 14891/91) filed under Order 39, Rules I and 2 read with Section 151, Cpc, reads as under: "This is an application filed by the plaintiffs under Order 39, Rules 1 and 2 and Section 151, CPC. Prayer-A has become infructuous as the plaintiff No. 1 has resigned from the Board of defendant No. 1-Company. Prayer-B is for seeking a direction from the Court to restrain defendants from surrendering or parting with possession of any of the four tenancy premises as detailed in Para-11 of the plaint. In Para-4 of the reply, defendants have stated that they are neither surrendering nor transferring properties of the Companies as alleged by the plaintiff. This Court on 13.12.1991 has recorded an undertaking on behalf of the defendants that the immovable properties and tenancy rights of the Company as detailed in Para-11 of the plaint shall not be encumbered, surrendered or transferred till the next date of hearing. Now it has been agreed between the parties that defendants shall be at liberty to deal with the property in the normal course of the business. In case the defendants are intending to surrender/transfer the aforesaid properties, a notice by registered A.D. post giving 15 days time will be given to the plaintiff, who may move an appropriate application in this regard. This will be without prejudice to the rights and contentions of the parties. Orders made on 13.12.1991 are modified to the extent as stated hereinabove. Application stands disposed of."

(4) The defendants have now filed the above mentioned application under Order 39, Rule 4, Civil Procedure Code with the prayer that the order dated 9.5.1994, passed by the learned predecessor of this Court on plaintiff's application ( Ia 14891/91), be vacated. Notice of the above mentioned application was given to the plaintiffs through Counsel who have filed reply to the same.

(5) I have heard the learned Counsel for both the parties at length and have also carefully gone through the documents/material on record. As already stated, the present application has been filed by the defendants under Order 39, Rule 4, Cpc and therefore in the present proceedings the real point at issue is the scope of the jurisdiction of the Court under Order Xxxix, Rule 4, CPC. In the above context, it would, therefore, be useful to refer to the provisions contained in Order Xxxix, Rule 4, Civil Procedure Code which read as under : "Any order for an injunction may be discharged or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order: 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 statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice : Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set 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 Court is satisfied that the order has cause undue hardship to that party."

(6) Thus according to the second proviso to Rule 4, Order Xxxix, Cpc, an order of injunction shall not be discharged, varied or set aside except where such a course is necessitated by change in the circumstances or unless the Court is satisfied that the order had caused undue hardship to that party. Rule 4 cannot give the Court jurisdiction to interfere with an injunction already passed when each side has had an opportunity of being heard and no grounds other than those available at the original hearing appear or are urged. Even in cases where a party has, by his own default, neglected to put his case forward at the original hearing, he at a later stage cannot come forward under Rule 4 and plead that he has a legal right under that rule to have the case re-opened and re-heard.

(7) In the present case, the learned predecessor of this Court, as already stated, had initially on 13.12.1991 passed an order which inter alia had the effect of restraining the defendants / applicants from encumbering, surrendering or transferring the immovable properties and the tenancy rights of the Company. But after hearing the learned Counsel for both the parties at length and also after taking into consideration the facts and circumstances of the case, the learned predecessor of this Court vide order dated the 9th May, 1994 while finally disposing of the above mentioned application of the plaintiffs, filed by them under Order 39, Rules 1 and 2 Civil Procedure Code modified the order dated 13th December, 1991 considerably thereby giving the defendants the liberty to deal with the property in the normal course of the business. This part of the order is more or less a consent order passed as agreed between the parties. Not only this from a perusal of the above said order, it is apparent that the learned predecessor of this Court vide above mentioned order has also made it clear that in case the defendants/applicants are intending to surrender/ transfer the properties, a notice by registered A.D. post, giving 15 days' time would be given to the plaintiffs who have been given the liberty to move an appropriate application in that regard. In the presence of the above facts, it cannot be stated that the order dated the 9th May, 1994, finally disposing of the application of the plaintiffs, filed by them under Order 39, Rules 1 and 2, Civil Procedure Code has caused any undue hardship to the defendants/applicants. The learned Counsel for the applicants/defendants has also not been able to prove to the satisfaction of this Court that there has been any change in the circumstances necessitating the vacation/variation of the above said order.

(8) In view of the above discussion, the above mentioned application, filed by the defendants, under Order 39, Rule 4, Civil Procedure Code for the vacation of order dated 9th May, 1994, passed on plaintiff's application (IA 14891 /91 ), is without any substance and the same merits dismissal. Accordingly, the same is dismissed with no order as to costs. Ia stands disposed of in above terms