The appellant runs a girls school on Lawrence Road, Karachi, which has a large compound. The respondent is the owner of a shop which is adjacent to the compound of this school, and there is some dispute about the area of the compound in the appellant's possession. The appellants' case is that the respondent has opened a door in his shop access to which is through its own compound, therefore, on these allegations, it has filed a suit against the respondent in the District Court, Karachi, for a permanent injunction to restrain the respondent from opening the said door in its shop. The suit in pending in the Court of the 13th Civil Judge, Karachi, and I am informed that it was fixed for evidence today. Be that as it may, together with the suit, the appellants had filed an application for interim relief. Further, according to the appellant, the respondent was served with notice of its application for an interim injunction, but he refused to take that notice, therefore, after bearing the appellant, by his order dated 29th May, 1971 a Civil Judge, 1st Class, Karachi granted an interim injunction in favour of the appellant. The respondent was aggrieved by this order, but instead of challenging it in an appeal he filed an application in the same Court under Order XXXIX, rule 4, C.P.C. For vacating the interim order obtained by the appellant. This application was naturally pressed on the ground that the appellant had obtained in its favour the order of 29th May, 1971, by misrepresentation and by "procuring the false service of summons and notices of plaintiff's application under Order XXXIX, rules 1 and 2, C. P. C. By being to league and collusion with the bailiff and by practising fraud upon this Court'". I would pause here to point out that on these allegations the respondents was, no doubt, entitled to seek relief under rule 4, of Order XXXIX, C.P.C. And in support of these allegations, he had filed before the trial Court a copy of the bailiff's report about the service on him of the appellant's appli--cation for interim relief. I will presently consider this report. Reverting however to the facts of this appeal the appellant contested the respon--dent's application under Order XXXIX, rule 4, C. P. C. And submitted, inter alia, that it was not maintainable in view of the judgment of Valiani. J in Returning Officer. K.M.C. v. Habibullah (PLD 1956 Kar, 429) and in its counter-affidavit to the respondent's application, the appellant had expressly, referred to this judgment. Unfortunately, its misfortune was that as the respondent had filed his application during the vacation, it came up for hearing before an Additional District Judge, Karachi, who by his order dated 10th June, 1971 allowed it, therefore, the appellant has come in appeal to this Court against this order of 10th June, 1971.
2. The learned Additional ,District Judge has, in a very cursory order, referred to a sketch produced by the respondent and then stated :- "The sketch produced shows that the dour of shop of defendant opens in big passage to the gate of school and so there can be no nuisance. The defendant claims the shop and the wall on which door is opened to be his property while plaintiff has not produced any proof that it belongs to him.
Grant of mandatory injunction at this stage has caused much loss as shop of defendant is closed and it amounts to decreeing the suit, without the plaintiff establi--shing his case. I, therefore, hold that it is not a case in which temporary mandatory injunction was allawed properly. I, therefore; allow the application under O. XXXIX, r. 4, C.P.C. And order vacating the temporary injunction granted to plaintiff."
3. Mr. Ejaz Ahmed defended the impugned order on the ground that a mandatory injuction was granted only when the plaintiff had made out an extremely strong case. I agree with this submission; but I would also record here Mr.. Memon's submission that the appellant had made out an extremely strong case. However, as this relates to the merit of the dispute between the parties, I am loath to go into this aspect of the case. It is also not necessary to do so, because I am satisfied that the respondent's application was barred in view of the judgment of Valiani, J, in the Returning Officer, K.M.C.'s case. I may further observe hereat this judgment states the settled practice on toe original side of this High Court and an AdAtional District Judge in Karachi should have been aware of this long established practice. I am compelled to refer to this aspect of the case because of the criticism of the appellant's advocate in impugned order. I will not go into the explanation submitted to me by the appellant's Advocate as it is sufficient to state here that he has been of assistance to me in this Court. I would therefore refrain from making any observations on this unfortunate aspect of the case, but assuming only for sake of argument that the appellant's Advocate had not assisted the Court, this could not relieve the learned Additional District Judge of his duty to follow the law, the more so as the relevant case law had been cited by the appellant in his countries affidavit. Additionally, the facts of the case were shocking, and there was no equity in the respondent's favour. I observed earlier that the respondent had based his application on the allegation that the appellant had procured "the false service of summons" on him in "collusion with the bailiff". Now, in support of this allegation Mr. Shaikh Ejaz Ahmed, the respondent's learned Counsel, referred me to the bailiff's report a copy of which has been filed in this Court. The bailiff, one Mahmood has stated in this respect that he had offered the notice of the appellant's application for an interim: injunction to the respondent together with copy of the application. The report further states "after reading and noting he refused to accept the, notice and summons therefore affixed the copy of the notice and a coy of the summons on the outer door of the defendant's shop/premises". An injunction is an equitable remedy and is not available to a party who does not come with clean hands. I am, therefore, shocked that the learned Additional District Judge exercised his discretion in favour of a litigant who had shown such scant regard for the Court. Another distressing aspect of the case is that the 1--learned Additional District Judge has not given any reasons exercising jurisdiction under Order XXXIX, rule 4 but as I have had the assistance of both the learned counsel on the scope of this rule, I will now, for the guidance of subordinate Courts, give my views.
4. The first two rules of Order XXXIX of the Civil Procedure Code confer power on Courts to grant temporary injunctions, and they regulate the manner in which Courts have to exercise their discretion in granting interim injunctions. Rule 3 then states :- "3. The Court shall in all cases, before granting an injunction, direct notice of the application for the same to be given to the opposite party Provided that, except in the case of sale of goods for default in payment, at the stipulated time, of a debt in respect of which the goods were passed with any bank, the Court may, where it appear that object of granting injunction would be defeated by the delay, dispense with such notice."
The ends of justice may be defeated by an order for notice, therefor, this rule, which is in the nature of an exception to the earlier rules, empowers the Courts to pass ad interim orders. Finally, rule 4, the only other rule of Order XXXIX, which is relevant, reads as follows :-
4. 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,"
It is not an accident that this rule follows rule 3. In my humble opinion. The intention of the Legislature in prescribing this rule is very clear. It has been enacted to give relief against the ex parse orders passed under rule 3 or when it is necessary, on account of subsequent B change of circumstances to vary or modify or set aside an interim order which had become final. It was observed by Nallani J. In Returning Dicer, K. At. C.'s case "When a case falls within the exception a temporary injunction is made ex parte i.e. Without notice to the opposite-party the remedy for an ex parte temporary injunction is provided in rule 4 of Order XXXIX."
The learned Judge then proceeded to consider whether an order granting an ex-parse interim injunction was appeal able, but this point is not relevant to the instant case.
5. 1 observed earlier that the view of Valiani, J. States the settled practice of this Court and I would further point out that it merely follows the settled practice of the Presidency High Courts. Thus, in Govinda Ramanuja Das Goswa mi v. Viliaramaralu and another a Division Bench of the Madras High Court observed at page 804: - "We think it is clear that O. XXXIX, R. 4 is intended to cover two classes of cases: (PLD 1959 Kar. 429)
When an urgent order ex parte has been passed under O. 3, R. 4 will allow the party against whom it has been pass--ed to apply to have it discharged or varied or set aside, and (A 1 R 1929 Mad.
803) 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 R. 4 to the Court to discharge, vary or set it aside. We are clear that R. 4 cannot give a Court jurisdiction to interfere with an injunction already passed when each side has had an opportunity of being heard, and no grounds other than those available at the original hearing appear or are urged. When therefore a :party has by his own fault neglected to put his case forward at the original hearing, he cannot come forward under R. 4 later and plead that he has a legal right under that rule to have the case re-opened and re-heard. R. 4 cannot be read so as to allow a party e.g. To let the appeal C time slip by or to wait until his appeal has been dismissed and then to re-open his original case."
I am in respectful agreement with these observations and, in my humble opinion, no other view is possible.
6. Mr. Ejaz Ahmed Shaikh, however, submitted that the 'view taken in the impugned order was supported by two judgments of the Azad Kashmir Courts, and learned Counsel referred me first to Ismail and others v. Faleh Alam and others. There, a learned Judge observed at page 13 :- "Where a temporary injunction is issued ex parte and notice is issued to the opposite party he has two remedies open to him. He may come up in appeal against the order issuing the temporary injunc--tion ex parte or he may apply to the Court issuing the temporary injunction under Order XXXIX, rule 4 and the Court may discharge or vary or set aside such injunction."
These observations can help the respondent only if he can show that the interim injunction passed against him by the learned Civil Judge on 29th May, 1971 had been passed, to quote the language of Order IX, rule 4, C.P.C., as it now stands, by dispensing with notice to him ; or perhaps, at the most, if, in the interest of justice, it had been passed without giving him a full hearing which was sought by him, as held in Bees and others v. Woodhouse and others ((1970) 1 All E.R 762). And the question is always of the intention of the Court. Now, in the instant case, as the learned Civil Judge had ordered notice on the appellant's application, it means that he had rejected the appellant's plea of urgency and declined to exercise his powers under Order XXXIX, rule 3. Thereafter, as the respondent had been served, and as I am satisfied that his plea to the contrary was false, it was up to him to show cause against the appellant's application. As he wilfully declined to show cause he cannot, so to say, resurrect rule 3 in order to take advantage of his own fault. The case could not fall under that rule because he was given full opportunity to oppose the appellant's applica--tion, and merely because he preferred to be absent cannot alter the nature of the Court's order. That order was an interim order and not an parte interim order, so that the judgment cited is not relevant.
7. Mr. Ejaz Ahmed Shaikh also, relied on an observation in Azad Kashmir Government v. Mian Mirza Muhammad Sarwar Khan and others (1' L D 1970 Azad J & K 15). The only question in this case was of the maintainability of an appeal against an order granting an interim injunction, and in the passage relied upon, the Court observed at page 20 -Rule 4 appears to have been enacted to empower the Court with were powers of review if the circumstances so require." The observation in this passage is very were, and, with respect, it was unnecessary for the decision of the case.
Second--ly, it is unfortunate that the attention of the Court was not drawn to Order XLVII of the Civil Procedure Code, as it is that order which defines a Court's power of reviewing its own decision.
Thirdly, in my opinion, the observation had reference to an ex parte order passed by a Court under rule 3 of Order XXXIX, but if the observation was intended to lay down a wider rule, then I regret my inability to agree with it, and, in my opinion, the correct analysis of Order XXXIX, rule 4 is contained in the judgment of the Madras High Court in Govinda Ramanuja Das Goswami's case.
8. However, I find that the observations of a learned Single Judge in Lever Brothers Port Sunlight Limited v. Insaf Soap Factory, Sargodha (PLD 1957 Lah. 523) support the respondent's case that he was entitled to re-agitate, tinder Order XXXIX, rule 4, C.P.C., the injunction order passed against him by the learned Civil Judge on 29th May, 1971. The dispute in the Lever Brothers case related to the infringement of the plaintiff's trade mark, and together with the suit, it had applied for an interim injunction to restrain the defendant from infringing its trade mark. The learned District Judge granted an injunction after fully hearing both the para. The defendant was aggrieved by the order thus passed against him, but, instead of challenging it in an appeal to the High Court, he re- agitated the matter in an application under Order XXXIX, rule 4, C.P.C., and when this application was dismissed he went in appeal to the High Court. The plaintiff-respondent challenged the appeal only on the ground of limitation and the appeal was dismissed on this ground. However, I find that the learned Single Judge observed at page 526, "in cases where an injunction is issued whether without or after hearing the party against which it is issued two remedies are open to the aggrieved party, one, being an application under Order XXXIX, rule 4 of the Code of Civil Procedure and the other an appeal under Order XLII1, rule (v) of the Code". With very great respect, I am not able to agree with the view taken in these observa--tions. In the first place as was observed by the learned Judges of the. Madras High Court in Govinda Remunula Das Goswami`s case, such a con-- struction of Order XXXIX, rule 4, C.P.C. Would enable the aggrieved party to defeat the priod of limitation prescribed for filing appeals against such orders. Secondly, except in the event of a change of circumstances, if a Court can re-open its decision in this manner, it would be tantamount to the exercise of a power of review, and the fact that the decision sought to be thus altered is a decision on an interlocutory matter would not alter the fact that the Court was reviewing its own decision, but a power of review can only be conferred by the Legislature, and the Legislature has conferred that power only in Order XLVII of the Civil Procedure Code. Therefore, with the utmost respect Order XXXIX, rule 4 cannot bear the construction placed on it by the learned Single Judge in the Lever Brothers case. But even if, I am wrong, at the highest, there is an ambiguity in the statute and that ambiguity must be construed so that the rule does not conflict with the provisions of Order 47 of the Civil Procedure Code. Therefore, with profound respect, on this ground also, I cannot agree with the view taken in the Lever Brothers' case.
9. In the result, I hold that the Additional District Judge had no jurisdiction whatever to entertain the respondent's application under Order XXXIX, rule 4 of the Civil Procedure Code. This means that the interim injunction granted by the learned Civil Judge on 29th May, 1971 is still in force. Accordingly, for the reasons given herein, I had allowed this appeal with costs on 13th December, 1973. However, as the suit of the plaintiff is an old suit, I direct the learned Civil Judge to dispose it of within three months.