P.C. Misra, J.
1. This is an appeal under Order 43, Rule 1(r) of the Civil P. C. (for short, 'the Code') by defendant Nos. 1 and 2 in O. S. No. 127 of 1980-I of the Court of the Subordinate Judge, Bhadrak.
2. The respondents have filed the aforesaid suit against the present appellants and some others praying for permanent injunction in respect of the lands described in schedule 'Ka' of the plaint restraining them from interfering with the possession of the plaintiffs and in the alternative, for partition of the properties in Schedule 'Kha' of the plaint. An application for temporary injunction was filed under the provisions of Order 39, Rules 1 and 2 of the Code registered as Misc. Case No. 147 of 1980 and the trial court was pleased to pass an ad interim order of injunction on 9-10-1980 ex parte. Thereafter notice of injunction was issued pursuant to which the present appellants made their appearance in the court and filed then-objection against the grant of injunction. The matter was finally heard and the learned Subordinate Judge by his order dt. 25-11-1980 made the ad interim order of injunction absolute. On the very next day, i.e. on 26-11-1980, an application under Order 39, Rule 4 of the Code was filed by the present appellants in the trial court which was registered as Misc. Case No. 195 of 1980. The learned Subordinate Judge who heard the said Misc. Case has dismissed the same on the ground that no case has been made out in the application for his interference under Order 39, Rule 4 of the Code. It is against this order that the present appeal has been filed.
3. Mr. Mohanty while arguing this appeal on behalf of the appellants represented that the order passed by this Court in Misc. Appeal No. 234 of 1981 is of relevance and, therefore, the record of that case was brought for reference. That Misc. Appeal appears to have been disposed of on 24-3-1982. It further appears that the said appeal was barred by limitation and was dismissed. I do not find that the order passed in that Misc. Appeal is of any relevance so far as this appeal is concerned.
4 Mr. Mohanty has strenuously contended that after passing of the ad interim order of injunction, the court has failed to comply with the mandatory provisions of law as enumerated in Order 39, Rule 3 of the Code for which the ad interim order of injunction shall be taken to be non est. Order 39, Rule 3 provides that the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. According to Mr. Mohanty, no notice of injunction was passed before grant of ad interim injunction. It, therefore, follows that the proviso to Rule 3 of Order 39 would be operative. The said proviso directs that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant, to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with a copy of the affidavit filed in support of the application; a copy of the plaint; and copies of documents on which the applicant relies, and to file, on the day on which such injunction is granted on or the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent. According to Mr. Mohanty, the appellants have not been delivered with the copies of the documents on which the applicants relied and no affidavit is said to have been filed, as required by the said rule. , According to Mr. Mohanty, non-compliance of the said requirements which are mandatory in nature would result in making the ad interim order of injunction a nullity and further the court should presume that the ad interim order of injunction did not at all exist in the eye of law. The aforesaid contention of Mr. Mohanty does not appear to me to be sound.
5. The order of the court passed ex parte is open to be challenged by the opposite parties at the final hearing of the Misc. Case. The fact that the documents required to be served on the opposite parties were not, in fact, served may be a ground for not exercising the discretion of granting injunction in favour of the petitioners at the final hearing. Neither the language of the Code nor the spirit of the law warrants an inference that the ad interim order of injunction passed by the Court shall be rendered as non est if the party in whose favour the injunction was made fails to comply with the provisions of Rule 3 of Order 39 of the Code. The ad interim order of injunction passed ex parte in the absence of compliance of the provisions of Rule 3 may have other consequences with which we are not concerned in this appeal, but the ad interim order of injunction cannot be taken to be non-existent on account of the alleged non-compliance. That apart, all these objections are available to be made and dealt with at the final hearing on the injunction matter. It appears that the court after hearing both the parties on merits has made the ad interim order of injunction absolute. According to Mr. Mohanty, the previous Misc. Appeal No. 234 of 1981 which was disposed of on 23-4-1982 was an appeal against the final order of injunction passed by the trial court, but in the order passed in the said appeal it has been clearly mentioned that the said appeal was against the ex parte ad interim order. Therefore, once injunction matter was heard on merits in the presence of both the parties and the objections that were available to be raised at that stage, either having not been raised or having been raised and not accepted by the court, are no more available to be raised once again in an application under Order 39, Rule 4 of the Code.
6. The next contention of Mr. Mohanty was on the basis of a decision in the case of H. Bevis and Co., Kanpur v. Ram Behari, AIR 1951 All 8, wherein it has been observed that once an ex parte injunction is issued, the application praying for temporary injunction is disposed of finally and it no more remains to be considered. In my opinion, with all respect to the learned Judges, such observation does not appeal to me. Order 39, Rule 1 of the Code categorically says that the Court may grant an interim injunction until disposal of the suit or till further orders. The application made in the suit is for a temporary injunction till the disposal of the suit. Therefore, the Court in justifying circumstances can issue ex parte interim injunction for a temporary period under Order 39, Rule 1 of the Code and may in the same proceeding consider whether the period for which the injunction was granted would be extended till the final disposal of the suit or would be vacated. At any rate, the said question does not arise in this case tp be considered inasmuch as it is not an ex parte order of injunction against which this appeal has been preferred.
7. Mr. Mohanty has next contended that as, according to him, the ad interim order of injunction passed ex parte should be taken to be non est for the non-compliance of the provisions of Rule 3 of Order 39 of the Code, the subsequent order of the court making the ad interim order of injunction absolute is meaningless as an order which does not exist in the eye of law cannot be made absolute. I have already found that the ad interim order of injunction, even though the provisions of Rule 3 have not been complied with, cannot be taken to be non est though I do not express any opinion whatsoever as to the other effects of non-compliance of the said rule. Therefore, this argument of Mr. Mohanty does not hold good. Besides, the court at the final hearing has heard both the parties on merits as to whether the interim injunction would be issued or not. The order of the learned Subordinate Judge to the effect that the ad interim order of injunction is made absolute should mean that he issued the interim injunction and, therefore, the aforesaid argument of Mr. Mohanty does not merit consideration.
8. The second proviso to Order 39, Rule 4 of the Code is in the following lines : --
'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 caused undue hardship to that party.'
Two situations have been contemplated in the said proviso where the Court should exercise jurisdiction under that rule, namely, where there has been a change in the circumstances which necessitates setting aside or modifying the final order of injunction and where the court is satisfied that the order has caused undue hardship to the party who has suffered the injunction. None of the said ingredients have been pleaded to exist in the application under Order 39, Rule 4 of the Code. There can be no change of circumstances because the application under Order 39, Rule 4 was filed on the very next day when the final order of injunction was passed. The question of undue hardship equally does not arise as nothing has been pleaded in the application as to how and when undue hardship arose. Under these circumstances, I do not find any justification to interfere in the impugned order.
Accordingly this appeal is dismissed. There would however, be no order for costs.