JUDGMENT
Manmohan Sarin, J.
(1) The petitioner is aggrieved by the order dated 28.5.1997, by which the Civil Judge vacated the ex-parte order of injunction that was granted on 1.9.1993 in favour of the plaintiff.
(2) The grievance of the petitioner is that the impugned order has been passed, while the application under Order Xxxix Rules 1 and 2, Cpc, is fixed for arghments.
(3) Before the grounds on which the impugned order is assailed are considered, it would be appropriate to notice the proceedings in the suit culminating in the passing of impugned order. The petitioner had filed a suit for permanent injunction accompanied with an interim application for restraining the respondent from interfering with plaintiff’s possession. Vide an ex-parte order dated 1.9.1993, the respondents/defendants were restrained from interfering in the physical possession of the petitioners till further orders. The ex-parte order continued and it was on 7.2.1996, that arguments were heard on the application under Order Xxxix Rules I and 2, Civil Procedure Code and the case was posted for orders on 12.3.1996. This was followed by certain attempts for arriving at a settlement. Thereafter, the matter was adjourned as there was a change of the Presiding Officer.
(4) On 27.8.1996, the defendant No. 2 was proceeded ex-parte and the case was adjourned for arguments on the application under Order Xxxix Rules 1 and 2, Cpc for 4.10.1996. On 21.11.1996, Counsel for defendant No.1 appeared and made submissions to the Court that defendant No. 2 had not been served and had been wrongly proceeded ex-parte. The Court, accordingly, recalled the ex-parte order and directed the plaintiff to file the process fee for issuance of summons to defendant No. 2 for 10.4.1997. On 8.1.1997, the Presiding Officer was on leave and the case was adjourned to 21.1.1997, on which date the Court directed. “Notice be issued to defendant No. 2 on the process fee and registered A.D. card being filed, lor 10.4.1997. At that stage, the defendant No.1 made an oral prayer that defendant No. 2 was not a necessary party. Arguments were heard on this and the Court on 22.4.1997 fixed 9.5.1997 for orders. On the said date, the Court vide order dated 9.5.1997, held that defendant No. 2 was not a necessary party. The petitioner has challenged this finding in a revision petition. It is in these facts and background that the impugned order dated 28.5.1997, vacating the ex-parte injunction, which was granted on 1.9.1993, was passed.
(5) Learned Counsel has made following submissions before me in assailing the impugned order: Firstly, that the ex-parte order that has been passed on the application under Order Xxxix Rules 1 and 2, Cpc, cannot be vacated without going through the procedure prescribed under Order Xxxix Rule 4, Cpc, which has admittedly not been followed in this case. Secondly, even if the Court resorted to invoke inherent powers, the ex-parte order can be vacated only in two situations, viz., a case of abuse of process of the Court or when the impugned order is found to be manifestly unjust. Learned Counsel in support of his argument, further submitted that barring the aforesaid two contingencies, law does not contemplate vacation of an ex-parte order passed under Order Xxxix Rule 3, Cfc, without resorting to the provision of Order Xxxix Rule 4, CPC. Order Xxxix Rule 4 reads as under : 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 order 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.” Learned Counsel has drawn the attention of the Court to the undermentioned amendments made by the States of Madhya Pradesh and Uttar Pradesh to Carder Xxxix Rule 4, CPC. State Amendments (Madhya Pradesh)-In rule 4 (i) after the words “by the Court”, insert the words “for reasons to be recorded, either on its own motion or”, and (ii) at the end add the following proviso : “Provided also that if at any stage of the suit it appears to the Court that the party in whose favour the order of injunction exists is delaying the proceedings or is otherwise abusing the process of Court, it shall set aside the order for injunction.” – (14.8.1984) Uttar Pradesh – Same as that of Madhya Pradesh except for the word. “delaying” substitute “dilating”. – (1.1.1977).
(6) Learned Counsel submits that as far as Delhi is concerned, no such amendment has been made and in the absence of such an amendment, it would not be permissible for the Court to vacate the order on its own motion in the exercise of inherent powers on the ground of delay in the proceedings or there- being abuse of legal process. The argument being that Legislature did not intend vacation of an ex-parte order passed under Order Xxxix Rule 3, Cpc, in Delhi on the ground of delay etc., otherwise similar amendment would have been made in Order Xxxix Rule 4, Cpc, for Delhi also. The submission is misconceived and devoid of merit. The absence of a similar amendment in Order Xxxix Rule 4, Civil Procedure Code for Delhi, cannot operate as a fetter or in any manner restrict the scope of inherent power under Section 151, CPC. Rather if there was a similar amendment in Order Xxxix Rule 4, Cpc in Delhi, then possibly an argument for non-exercise of inherent powers under Section 151, Cpc, because of the existence of specific provision could have been raised.
(7) Even on the merits of the order being vacated in the exercise of inherent powers on the ground of delay, he subnets that the petitioner had been diligent all through in the prosecution of the suit and the occasion for adjournment on the last date had arisen because of the illness of the Counsel. Learned Counsel contends that this was the first occasion when the case had been fixed for arguments after the change of the Presiding Officer and the matter could not be argued on account of the illness of the Counsel. In these circumstances, learned Counsel prays that the revision petition be allowed and the impugned order be set aside since it does not record any reason for the exercise of inherent powers.
(8) Learned Counsel in support of his submissions, relied on M.C.D. v. Sunni Majlis Aukaf and Ors., (AIR 1968 Delhi 215). In this case, the Court had passed an order rejecting the application for execution of the decree passed in favour of the Municipality. The Municipality neither appealed nor filed the review against the said order. However, after the expiry of the limitation period for appeal or review, an application under Section 151, Civil Procedure Code was filed. The Court held that the review under Section 151, Civil Procedure Code was not maintainable and observed “that Section 151 of the Code merely reserves to the Court inherent power to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court and this power, though rightly undefined, cannot ordinarily be utilised for permitting a Court to reverse its earlier order on the sole ground that it is later found to be erroneous on the merits.” This authority would not be of any assistance to the petitioner in the instant case. This is not a case where the impugned order has been passed on an application of the respondent for discharge or variation of the injunction order, and instead of resorting to appeal or review, an application under Section 151, Cpc, was being preferred. This is a case, where the Court considering the unduly delayed proceedings in the suit while declining the request for adjournment, passed the impugned order vacating the ex-parte. stay. In fact, the observations in the decision cited recognised the invoking of inherent powers of the Court to meet the ends of justice or to prevent the abuse of legal process. Learned Counsel next relied on Mahadev Balappa Babshet v. I.V. Govindan and Ors. (19781.L.R. Vol. 4, Civil Procedure Code to get the order of temporary injunction passed under Rules I and 2 vacated. While the said application was pending, without considering the same, the Trial Court purporting to act under Section 151, Civil Procedure Code vacated the order of temporary injunction. The plaintiff filed an appeal against the said order which the Appellate Court held as not maintainable being an appeal against an order passed under Section 151, CPC. The plaintiff then filed the revision petition. The Court held “that Order Xxxix Rule 4, Civil Procedure Code specifically provided and enabled the party to get an injunction order vacated by applying for the same and when the party so applied, the Court has no jurisdiction to invoke the inherent powers under Section 151, Cpc to vacate the injunction order. Where the Court vacates the injunction order under its inherent powers, such an order is without jurisdiction and cannot be sustained.” The above case is clearly distinguishable on facts. An application for vacation of the injunction order under Order Xxxix Rule 4, Civil Procedure Code was already pending and the Court was seized of the same. It was, in the circumstances, when an application was pending on statutory grounds specified in Order Xxxix Rule 4, Civil Procedure Code that the Court held that resort could not be had to Section 151, CPC. In the instant case before me, no such application was pending. Moreover, it cannot be lost sight of .that the ex-parte injunction, which was obtained as far back as 9.5.1993 had continued for over four years. The plaintiff for a period of over four years had prosecuted the case in such a manner that the injunction application could not be heard and disposed of. It goes without saying that the disposal of the application had .been unduly delayed and though the plaintiff makes a vain attempt to absolve himself of the blame for it. Even in the limited narration of proceedings as is available, the conclusion with regard to the plaintiff having delayed the disposal with a view to continue with the benefit of the ex-parte order is inescapable. The Court reached the conclusion that the plaintiff was not interested to address the arguments on injunction application. The learned Civil Judge was further of the opinion that the request for adjournment not being supported with any medical certificate, was vexatious. He, therefore, proceeded to vacate the ex-parte order of injunction. The vacation of the ex-parte order in the exercise of inherent powers to prevent the abuse of the legal process and to secure the ends of justice cannot be said to be vitiated by want of jurisdiction or material irregularity in the exercise of the jurisdiction. The impugned order, which was passed on 28.5.1997 vacated the ex-parte injunction and fixed the application under Order Xxxix Rules I and 2, Civil Procedure Code for arguments to be disposed of on 10.7.1997 and which is now said to be listed for 24.7.1997. The impugned order has fixed the date of final disposal of the application in close proximity i.e. 24-7-1997. It has, therefore, provided the petitioner full opportunity to argue his case on merits. The impugned order has only disabled the petitioner from continuing with an advantage obtained ex-parte, which had been unduly prolonged to the detriment of the other party.
(9) Considering the matter in totality and keeping in view the legal position as discussed, this is not a case warranting interference in the exercise of revisional jurisdiction. However, it may be observed that the Trial Court would now proceed to expeditiously dispose of the application under Xxxix Rules I and 2, Civil Procedure Code on merits, without in any manner being influenced by the impugned order vacating the ex-parte injunction. Revision petition has no merit and is dismissed.