JUDGMENT
L. Narasimha Reddy, J.
1. Defendants in O.S. No. 1041 of 2003 on the file of Principal Senior Civil Judge, R.R. District filed this appeal under Section 104 read with Order XLIII Rule 1 C.P.C.
2. The respondent filed the suit against the appellants for the relief of perpetual injunction in respect of Ac. 15.00 of land in survey Nos. 86 and 87 of Kondapur village, Serilingampally mandal. He also filed I.A. No. 2120 of 2003 under Order XXXIX Rules 1 and 2 C.P.C. The trial Court granted an ex parte temporary injunction on 26.09.2003. On receiving the notice in the I.A., the appellants filed counter-affidavit. It is their case that they are the owners of the land in Survey No. 80 of Hafizpet village adjoining the lands of the respondent in Kondapur village, and taking advantage of the boundary dispute, the respondent is trying to encroach upon their lands. They filed I.A. No. 2242 of 2003 under Order XXVI Rule 9 C.P.C. for appointment of an Advocate-commissioner to undertake demarcation of the suit land on the one hand and the land in Survey No. 80 of Hafizpet village on the other, duly taking the assistance of departmental surveyor.
3. The appellants filed I.A. No. 2700 of 2003 under Rule 4 of Order XXXIX C.P.C. for amending the order of ex parte temporary injunction. They plead that the respondent is trying to remove the boundary stones and alter the boundaries under the guise of the ex parte temporary injunction. The application was resisted by the respondent. Through its order, dated 08.01.004, the trial Court dismissed the I.A. Hence, this appeal.
4. Sri E. Ajay Reddy, learned counsel for the appellants, submits that the view taken by the trial Court that the order of ex parte injunction cannot be modified, unless the I.A. itself is disposed of, cannot be sustained in law. According to him, Rule 4 of Order XXXIX C.P.C. enables the trial Court to modify or vary an order of ex parte injunction depending on the facts and circumstances of the case. On merits, learned counsel submits that taking advantage of the order of ex parte injunction, the respondent is trying to change the boundaries to frustrate the execution of the warrant issued to the Advocate-commissioner in I.A. No. 2242 of 2003.
5. Sri A.H. Chakravarthi, learned counsel for the respondent, on the other hand, submits that it is at the instance of the appellants that the trial Court appointed an Advocate-commissioner and till the final report is received and the matter is considered on merits, it is not permissible to modify or vary the order of temporary injunction. He submits that the appellants cannot have the advantage of getting an Advocate-commissioner appointed, thereby delaying the disposal of the main application on the one hand and seeking modification of the ex parte injunction even before the main application is disposed of, on the other.
6. The narration of the facts in the preceding paragraphs discloses that the trial Court granted an ex parte temporary injunction on 26.09.2003 in I.A. No. 2120 of 2003 filed by the respondent. The appellants filed a counter-affidavit in the I.A. They also filed I.A. No. 2242 of 2003 under Order XXVI Rule 9 C.P.C. for appointment of an Advocate-commissioner for identification of the boundaries. The I.A. is said to have been allowed on 04.12.2003. As observed by the trial Court, the report that may be submitted by the Advocate-commissioner would certainly be useful for the disposal of the main application.
7. The grievance of the appellants is that taking advantage of the order of ex parte injunction, the respondent is trying to change the boundaries and encroach upon their lands. If this is true, the same needs to be remedied. It is for this reason, they filed I.A. No. 2700 of 2003 under Rule 4 of Order XXXIX C.P.C.
8. A perusal of the order under appeal discloses that the trial Court was not inclined to pass any order in the application on the ground that such modification or variation would be permissible only at the disposal of the application. The same is evident from the following observation made by the trial Court:
“As observed in the discussions referred supra, once an injunction order is granted, it cannot be modified unless the matter is heard on merits, by appreciating the respective cases of the parties on merits and also on the basis of the report of the Commissioner. As already stated, admittedly there is no claim by either of the parties in respect of the other properties. Both of them are claiming separate property in separate sy. Nos. The dispute is only a boundary dispute and such a Commissioner was appointed. Therefore at this juncture, it cannot be stated that the respondents/plaintiffs are not entitled for any injunction or the injunction granted is to be modified till the matter is adjudicated upon the merits.”
9. The view taken by the trial Court, in this regard, does not appear to be in conformity with Rule 4 of Order XXXIX C.P.C. It is beneficial to extract the Rule for proper appreciation of the matter.
“Order for injunction may be discharged, varied or set aside: 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 caused undue hardship to that party.”
10. From a reading of Rule 4 and on a consideration of the entire scheme contained in Order XXXIX C.P.C., it is evident that once an ex parte order of temporary injunction, by dispensing with the notice as provided for under Rule 3, is granted, the Court is conferred with the power to dispose of the application finally, as provided for in Rule 3A, after hearing the parties. Rule 4 contemplates a situation where certain modifications or the discharge of the order of ex parte injunction is warranted before the application filed under Order XXXIX Rule 1 C.P.C. is disposed of. It is to meet such contingencies, that power is conferred on the Court to vary, set aside or discharge the order of ex parte injunction. Such variation or discharge may be as a measure of disposal of the I.A. or as an interim measure pending final disposal of that application. A reading of the proviso 1 and 2 of Rule 4 supports such a view. Rule 4 does not indicate that the discharge or variation of the temporary injunction shall be as a final measure alone. The Court cannot be left in a helpless situation where the disposal of the main application is delayed for any reason. The ultimate effort is to ensure that the interests of the parties are protected properly.
In the present case, an Advocate-Commissioner was appointed to undertake survey and demarcation of the suit schedule property. By its very nature, the process takes some time. At the same time, if the appellants are able to satisfy the Court that the order needs to be modified, to protect the interests of the parties, their application cannot be turned down on the ground that it is not permissible to undertake modification or variation of the ex parte orders, till the application under Order XXXIX Rules 1 and 2 C.P.C. is disposed of. The trial Court did not express any view that the allegation made by the appellants is without any basis. It expressed its inability to grant any relief to the appellants on the ground that it is impermissible.
11. In view of the discussion undertaken above, the civil miscellaneous appeal is allowed and the order under appeal is set aside. It is further directed that I.A. No. 2700 of 2003 shall stand disposed of directing that the parties to the suit shall maintain status quo obtaining as on today till the disposal of I.A. No. 2120 of 2003. The trial Court is directed to dispose of the I.A. as early as possible and not later than four weeks from today.