JUDGMENT
T. Vaiphei, J.
1. This revision petition u/s 115 C.P.C. is directed against the order dated 11.7.2003 passed by Ld. District Judge, Manipur East in Civil Misc. Appeal No. of 2003 setting aside the interim temporary injunction order dated 17.9.2002 passed by the Civil Judge, Junior Division, Imphal in Judl. Misc. Case No. 100 of 2002.
2. The case of the petitioner, in brief, is that he is the owner- pattadar in possession of the homestead land under Dag No. 18 of Patta No. 47/ 203 (Old) and 47/340 (New), (“the suit land” for short). He instituted the suit against the respondents claiming a decree declaring his title over the suit land and a perpetual injunction restraining the respondent No. l, his men and parties from committing trespass into the suit land, etc. Simultaneously, the petitioner also filed an application under Order 39, Rule l(a) and (c) of Code of Civil Procedure (hereinafter called “the Code” for short) for temporary injunction to restrain same respondents from entering into the suit land pending disposal of the suit.
3. After hearing both the parties, the Ld. Civil Judge held that the suit land is in danger of being wasted or damaged by the agents of the respondent No. l and accordingly passed the order dated 17.9.2002 for maintaining status quo of the suit land as on the date of passing the order. Aggrieved by this order, the respondent No. l preferred an appeal before the Ld. District Judge, who after hearing both the parties set aside the said order of temporary injunction.
4. It is against this appellate order that the petitioner has approached this Court by way of a revision petition. I have heard Mr. R.K. Nokulsona, the Ld. senior advocate assisted by Mr. M. Jagajit, advocate, appearing for the petitioner. I have also heard Mr. Ch. Nodiachand, the Ld. senior advocate assisted by Mr. W. Sundar Singh, advocate, appearing on behalf of the respondents.
5. On going through the impugned order of the Ld. District Judge, it becomes evident and undisputed that the earlier application of the present petitioner for temporary injunction was rejected by the Ld. Civil Judge in his judgment and order dated 27.1.2000 in Judl. Misc. Case No. 141/99 on his finding that the petitioner was not in possession of the suit land. Therefore, the question for determination in this revision petition is whether the Ld. Civil Judge exceeded his jurisdiction by issuing temporary injunction when the earlier application for the same was rejected.
6. The power to issue temporary injunction is provided in Order-XXXD, Rules1 & 2 of the Code. The circumstances under which temporary a injunction can be issued by a Civil Court is no longer res integra. The conditions for and the circumstances in which such injunction may be discharged, varied or set aside are provided in Order 39, Rule 4, which may be reproduced hereunder : –
“4. 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.)”
7. In the instant case, the undisputed fact is that the injunction order dated 27.1.2000 was passed by the Ld. Civil Judge after hearing both the parties. Therefore, this is not a case in which an ex parte order of injunction was passed and the party affected applied for vacation of the ex parte injunction. It is also not the duty of the court to decide on continuing or vacating the ex parte injunction. The 2nd proviso to Order 39, Rule 4 of the Code contemplate one situation in which temporary injunction passed after hearing both the parties can be vacated/set aside, namely (1) where such discharge, variation or setting aside has been necessitated by a change in the circumstances and (2) where the court is satisfied that the order has caused undue hardship to the party. In other words, proof of “change in circumstances” and causing “undue hardship” are the only situations contemplated by the code for vacation/ discharge/variation of the injunction. It is contended by Shri R.K. Nokulsona, the Ld. senior counsel for the petitioner that there is no limit for applying temporary injunction under Order 39, Rule 1 of the Code and that the subsequent application for temporary injunction is not barred by the code. On the other hand, Mr. Ch. Nodiachand, the Ld. senior counsel for the respondents contends that the Ld. Civil Judge clearly erred in issuing the temporary injunction when there is no change in circumstances after the rejection of the earlier application for temporary injunction. He also submits that the order dated 17.9.2002 passed by the Ld. Civil Judge is virtually a review of the earlier order, which in the facts and circumstances of this case, is not permissible by law. Mr. R.K. Nokulsona, the Ld. senior counsel for the petitioner however, submits that the news items appearing in “Prajatantra” dated 6.8.2002 and the “Sangai Express” dated 6.8.2002 reporting that the petitioner is in possession of the suit land as he had taken possession of the same on the basis of a forged Janabandi/Patta and that the agent! of the respondent No.l had entered the suit land and destroyed materials thereon, which were not denied by the respondent and also of the fact that the 3 PWs already examined have proved the possession of the petitioner clearly demonstrate that there have been changes in the circumstances for varying/modifying the earlier order rejecting the application for temporary injunction. Accordingly, submits the Ld. counsel for the petitioner, the judgement and order dated 17.9.2002 passed by the Ld. Civil Judge is in order and the Ld. District Judge ought not to have interfered with it.
8. I have carefully gone through the impugned judgment and order of the Ld. District Judge as well as the materials on record, It may be reiterated that the Ld. Civil Judge in his judgment and order dated 27.1.2000 in Judl. Misc. Case No;141/99 has already made a categorical finding that the petitioner was not in possession of the suit land which dissuaded him from granting the temporary injunction prayed for by the petitioner. That being the position it is not understood as to how two years later, the Ld. Civil Judge reversed his finding and concluded that the petitioner was in possession of the suit land. I have carefully gone through the application for temporary injunction filed by the petitioner. In the absence of any cogent evidence, it is not possible to conclude that the petitioner has resumed possession of the suit land since 27.1.2000. In this subsequent application for temporary injunction, there is also no pleading to that effect. All that he pleaded is that he is in possession of the suit land without any interference from any quarter. Therefore, it cannot be said that there has been any changes in the circumstances warranting the varying of the earlier order dated 27.1.2000 or for directing the parties to maintain the status quo. Moreover, the subsequent application for temporary injunction does not appear to be an application filed under Order 39, Rule 4 of the Code since no change in circumstances has been pleaded therein.
9. In so far as the news items are concerned, the Ld. District Judge has elaborately discussed on their admissibility and held that they are not admissible on the ground that they did not ever refer to the date on which the incident took place. Besides, until and unless the contents of the news items are properly proved, it will not be safe to rely upon them even for a limited purpose of granting temporary injunction. I fully endorse the view taken by the Ld. District Judge and no ground is made out for interference by this Court.
10. It is next contended by Mr. R.K. Nokulsona, the Ld. senior counsel for the petitioner that the evidence of PWs already examined and which has not been shaken in cross-examination has clearly demonstrated that the petitioner is in possession of the suit land. It may be noted that the Ld. District Judge has taken the view that the witnesses were nor examined for the purpose of issuing temporary injunction and no DWs have been examined on behalf of the defendant and as such no finding could made in favour of the petitioner on the basis of such incomplete evidence and to do so would amount to violation of natural justice. I fully endorse the conclusion of the Ld. District Judge. Just as it would be premature to give findings on the basis of the evidence of the plaintiff when the witnesses of the defendant are not yet examined, it would also be premature to conclude that the petitioner is in possession of the suit land on the basis of such incomplete evidence. It is not the case of the petitioner that no evidence is being adduced by the defendant/ respondents. On the whole, the findings of the Ld. District Judge do not suffer from jurisdictional error and the same is in order. On the other hand, from the judgment order of the trial court it is obvious that the Ld. Civil Judge (Junior Division) has exceeded his jurisdiction by taking into account inadmissible evidence/extraneous matter, which rightly called for the intervention of the Ld. District Judge. Had not the Ld. District Judge quashed the order dated 19.7.2002, failure of justice would have been occasioned/perpetuated.
11. In the result, this revision petition is devoid of merits and is hereby dismissed. However, under the circumstances, there shall be no order as to costs.