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High Court Appeal No. 35 of 1981, decided on 5th May, 1982.
‑‑ O. XXXIX, r. 4‑Injunction‑Variation of‑Court granting injunction on condition of deposit of balance of sale consideration‑Fresh application for variation of injunction by appellant Only ground urged that appellant losing Rs. 300 daily by complying with condition-- Held: Once Court decides matter after giving parties opportunity of being heard, order becomes final and binding on itself as much as on parties and cannot be reopened except on new matter not available when original order passed‑Order XXXIX, r. 4 covers cases of ex parte order or when injunction already in force becomes unduly harsh or unnecessary or unworkable.
Govinda Ramanyia Das Goswami v. Vijiaramaraju and another A I R 1929 Mad. 803; Sind Madressah‑tul‑Islam Board Society v. Shamim P L J 1974 Kar. 143 and Karachi Development Authority, Karachi v. Haji Taj Muhammad and 3 others P L D 1977 Kar. 101 ref.
Sohail Muzaffar Hussain for Appellant.
Wajihuddin Ahmed for Respondent.
Date of hearing: 5th May, 1982.
=By an order dated 2-12‑1980, a learned Single Judge of this Court on an application made by the appellant granted injunction application made by the appellant grated injunction restraining the respondent from selling, damaging and/or mortgaging the property subject to the condition that the balance of sale consideration be deposited by the appellant with the Nazir of this Court within two weeks, failing which the injunction granted would stand vacated.
Pursuant to this order the appellant deposited Rs. 10,00,000 in Court.
However, subsequently he applied for variation of this order but the application was dismissed by the order dated 25th January, 1981, on the ground than no fresh facts had been stated in the application or the affidavit filed in support thereof, justifying the modification of the order of 2‑12‑1980. It has been further observed in the order that the only ground urged was that the appellant had withdrawn Rs. 10,00,000 from the fixed deposit to comply with the condition and thereby he was losing Rs. 300, by way of interest every day. The learned Judge opined that it was open to the appellant to file an appeal, if he felt aggrieved by the earlier order or to submit to the same and deposit the amount and since he chose to deposit the amount in Court he allowed the order to attain finality.
Therefore, the appellant has filed the present inter‑Court appeal.
In our opinion reasons given by the learned Single Judge are not only cogent but also no error in fact or law has been pointed out by the learned counsel for the appellant No new matter or reason which was not or could not be available when the original order was passed was pleaded. It is well settled that the provisions of Order XXXIX, rule 4, C. P. C. are not intended to set at naught the ordinary cursus curiae that, once a Court has decided a matter after giving each side an opportunity of being heard, its order is final and binding on itself as much as on the parties, and cannot be re‑opened except on the presentation of some new matter not available) when the original order was passed. We may state that Order XXXIX, rule 4, C. P. C. is intended to cover two classes of cases: (1) when an urgent order ex parte has been passed under rule 3, rule 4 will allow the party against whom it has been passed to apply to have it discharged or varied or set aside; and (2) when an injunction order already in force has, owing to fresh circumstances, become unduly harsh or unnecessary or unworkable, it would be open to either party to apply under rule 4 to the Court to discharge, vary, or set it aside. See the Division Bench case of Madras High Court in Govinda Ramanyia Dos Goswami v. Vijiaramaraju and another (A I R 1929 Mad. 803), which has been followed by Dorab Patel, J. sitting singly, in Sind Madressah‑tul Islam Board Society v. Shamim (P L J 1974 Kar. 143), and by Jamaluddin H. Ahmed, J. also sitting singly, in Karachi Development Authority, Karachi v. Haji Taj Muhammad and 3 others (P L D 1977 Kar. 101.).
We therefore, find no reason to interfere with the order under appeal and accordingly dismiss this appeal, however, leaving the parties to bear their own costs.
K. M. A. Appeal dismissed.
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