ORDER 39 RULE 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:
1
[Provided that if in an application for temporary injunction or in any affidavit support
such application a part 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 under hardship to that party.]
When an ex parte order of injunction is passed, and the party affected applies under Rule 4, it is the duty of the courts to decide the objection raised in the passing of the order of injunction.1
An ex parte order passed under Rule 3 can be set aside on an application of the defendant under this rule, if he shows cause why the injunctions should not be issued.2
The provisions of O. 39, r. 4 not only enables the defendant, but the plaintiff, who at one point of time obtained interlocutory order of injunction but on subsequent development
1 2
LD Meston School Society v. Kashi Nath Misra AIR 1951 All. 558 Mahommad Khalilur Rahman v. Parasnath AIR 1964 Pat. 165
the earlier order may be varied and / or discharged and/ or vacated at the instance of the plaintiff also. 3
ORDER VI RULE 17
Amendment of pleadings.The Court may at any stage of the proceedings allow either party o alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
Power to allow amendment should be liberally exercised.4
Leave to amend will be granted so as to enable the real question in issue between the parties to be raised on the pleadings, where the amendment will occasion no injury to the opposite party, except such as can be sufficiently compensated for by costs or other terms to be imposed by the order. 5 The application to amend must be bonafide and made in good faith. 6
3 4
Dover Park Builders Pvt. Ltd. v. Madhuri Jalan AIR 2003 Cal. 55, (2002) 4 Cal HN 162 Ramavatar v. Manak Raj AIR 1978 Rang. 186 5 Kisandas v. Rachappa (1909)ILR 33 Bom. 644, 4 IC 726; Ahmed Hossein v. Chembelli AIR 1951 Cal. 262, (1950) 85 Cl LJ 213; L Patrick v. Jhulon AIR 1969 Man. 33; LNO Mills v. Namraj AIR 1969 Del. 311, (1969) 71 Punj. LR 384 6 Tildesley v. Harper (1978) 01 CD 383
If the amendment converts the suit into another of a different and inconsistent character, it may or may not be allowed at the discretion of the court. In the exercise of this discretion, the court will not allow an amendment, if the application for amendment is made at such last stage of the proceedings that, if allowed, it would necessitate practically trying the case de novo7 , otherwise the amendment may be allowed. 8
Addition of relief for possession as an alternative relief was allowed where the plaintiff’s case all throughout was that he had the title to the suit property. 9
The High Court of Karnataka has held that an amendment for an additional relief ought to be allowed if it is based on the same set of facts. Such an amendment should also be allowed even if it involves a question of limitation so long as the defendant is in a position to effectively raise that question.10
A petition for divorce under the Hindu Marriage Act 1955, praying for divorce was allowed to be amended by adding an alternative prayer for judicial separation. 11 Amendments praying for new relief’s could be permitted so long as the character of the suit is not changed and no injustice is caused to the opponent.12
In considering an application for leave to amend pleadings, subsequent evetns can be taken into account. 13
7 8
Mahommad Abdul Jabbar v. Lulumya AIR 1947 Nag. 254, (1947) ILR Md. 450 Krishna Ayyar v. Gomathi Ammal AIR 1945 Mad. 83; Sudkya Ramji v. Mohammed Issak AIR 1950 Bom. 236 9 Jemma v. Raghu AIR Ori 12, (19760 ILR Cut. 1360 10 Kanmani Films v. G.K. Kutty AIR 1969 Mys. 259 11 Edma Satyamma v. Edma Gopala Reddy AIR 1961 AP 122 12 Harishankar v. Jagdish Narayan AIR 1954 MB 1 13 Vineet Kumar v. Mangal Sain AIR 1984 SC 971, (1984) 3 SCC 352