1999 PLP 3450 (MLD)

By this order I propose to dispose of C.M.A. 1692 of 1997 which has been filed by the plaintiff under Order 39, Rules 1 and 2, C.P.C. read with section 151, C.P.C. for varying the order dated 23-1-1994 whereby the plaintiff was granted injunction subject to deposit of Rs. 7,50,000 as balance sale consideration in respect of the purchase of the suit property. At the very outset it may be observed that an application to discharge, vary or set aside an order can only be filed under Order 39, Rule 4, C.P.C. whereas the instant application has been filed by the plaintiff under Order 39, Rules 1 and 2, C.P.C. Since mentioning of wrong provision of law alone is no ground for rejection of an application, therefore, I treat this application as one filed under Order 39, Rule 4, C.P.C. It has been contended by Mr. S. Zubair Shah that the defendant was restrained from selling/transferring and/or alienating the suit property vide order dated 23-1-1994 subject to plaintiff's depositing balance sale consideration of Rs. 7,50,000 in Court and the plaintiff, pursuant to such order, has deposited the said balance sale consideration with the Nazir or this Court. This application has been filed by the plaintiff for varying the order of 23-1-1994 to the extent that the amount deposited by the plaintiff with the Nazir of this Court be ordered to be refunded to the plaintiff alongwith profits accrued thereon on the ground that defendants Nos. 1 and 2 on 3-10-1993 have transferred the suit property in favour of defendant No. 3 in violation of the injunction order. Further connection of the learned counsel is that the suit property is it use of third person who is driving benefits from it whereas the plaintiff has been deprived of Rs. 7,50,000 and as such is suffering losses. Mr. S. Zubair Shah has, therefore, argued that in view of the transfer of the suit property by defenders Nos. l and 2 in favour of defendant No. 3, the circumstances have changed and new situation/cause has arisen due to which the injunction order passed on 3-1-1994 may be varied to extent of refund of balance sale consideration of Rs. 7,50,

000. In support of his contentions, Mr. S. Zubair Shah has placed reliance on the following cases: (i) Muhammad Inam v. Dr. Muhammad Safdar 1988 CLC 230) (ii) Muhammad Ashfaq and another v. Sohail Hameed and 3 others (1986 CLC 2218); (iii) Khizer Hayat Khan v. Musarrat Rabbani (PLC 1995 Lah. 438); (iv) Pakistan v. Karachi Development Authority (1980 MLD 2668); and (v) AIR 1955 Madras 491 On the other hand, Mr. Abdul Khalil, learned counsel for the defendants has vehemently opposed this application ad has submitted that the factum for sale transfer of suit property by defendant Nos.l and 2 in favour of defendant No. 3 was before the Court when the injunction order dated 23-1-1994 was passed inasmuch as according to admission of the plaintiff such transfer/sale by defendants Nos. 1 and 2 in favour of defendant Nos. 1 had already taken place on 3-10-1993. My attention has further been drawn by the learned counsel to a subsequent order passed by this Court on 24-12-1995 whereby on an application (C.M.A. 4883/1994) of the plaintiff the suit property was ordered to be attached. In these circumstances, Mr. Abdul Khalil untended that the present application is frivolous and is liable to be rejected. Before considering and discussing the case law cited by Mr. S. Zubair Shah, for the sake of convenience, I deem it proper to reproduce Order 39, Rule 4, C.P.C. which states: "

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. " After reading Rule 4 of Order 39, C.P.C. there is no doubt in my mind that an order for injunction can be discharged, varied or set aside by the Court on an application made by the party dissatisfied with such order but for discharging, varying or setting aside an injunction order under Rule 4 of Order 39, C.P.C., there must be some justification such as the change of circumstances after passing the order. In the afore-referred judgments relied upon by Mr. S. Zubair Shah, it has been invariably held by the Courts that an order of injunction can be discharged, varied and or set aside if the circumstances have changed after the passing of injunction order. The judgment cited by Mr. S. Zubair Shah are of no help to the plaintiff inasmuch as after passing of the injunction order dated 23-1-1994, the circumstances have not changed at all and on the contrary after passing of such order the plaintiff is enjoying an order of attachment in respect of the suit property, passed by this Court on 24-12-1995. As to the contention of Mr. S. Zubair Shan to the effect that defendants Nos. l and 2 have sold/transferred the suit property to defendant No. 3, suffice it to say that this fact was before the Court when the injunction order was passed and in fact the factum of sale of the suit property by the defendants Nos. 1 and 2 in favour of defendant No. 3 finds place in the order dated 23-1-1994. In view of the above discussion find no merit in this application and the same is, accordingly, dismissed. Q.M.H./M.A.K./M-288/K Application dismissed