G. D. Dube, J. - (1.) A very short point arises in this appeal from an order of Civil Judge, Aligarh, recalling the order dated 23-8-1990 made on a joint statement of the parties agreeing to maintain status quo of the property in dispute. Aggrieved by this order the defendants have preferred this appeal.
(2.) THE two plaintiffs, who are respondents 1 and 2, have already purchased a piece of land. THEy had alleged that the respondents were interfering in their possession over the property in dispute saying that it was a park land and no construction could be made on it THE plaintiffs had prayed for prohibitory injunction restraining the defendants perpetually from interfering over the land in dispute. THE suit was filed on 17-8-1990. On 23-8-1990, the parties' counsel had consented that both the parties shall maintain status quo of the land in dispute and shall cooperate in early disposal of the suit. In 1992, an application was moved by the plaintiffs that the defendants were delaying the proceedings and, therefore, the order dated 23-8-1990 be withdrawn and the application for temporary injunction moved along with the plaint be heard on merit THE defendants had filed objections against this application. THE learned Civil Judge had come to the conclusion that the defendant-appellants were delaying the proceedings deliberately and, therefore, he had withdrawn the order dated 23-8-1990 and had directed that the application for temporary injunction shall be heard on merit. It has been argued by learned counsel for the appellants that there was no effort from the side of the defendants to delay the proceedings. On 23-8-1990, 17-10-90 was fixed for written statement. The written statement was not filed on that date, but it was filed later on. The issues were framed on 14-5-1991. The learned Civil Judge had written in his impugned order that after framing of issues on 14-5-91 the defendants got their written statement amended. On 18-9-91, additional issues were framed. Thereafter, the defendants had moved applications for adjournment. The dates, on which adjournments were sought, have not been mentioned. On 11-11-91, the parties were heard on preliminary issues 14 and 18. The orders were passed by the court on 25-11-1991. On 17-12-1991, the defendants again moved for amendments of their written statement which was allowed by the trial court. On 8-1-1992, more additional issues were framed. 4-2-1992 was fixed for final hearing. One day before this date, some persons moved an application under Order 1 Rule 10, CPC for being impleaded. This application was rejected on 11-2-1992 After narrating above facts, the learned Civil Judge held that the defendants were delaying the proceedings by one way or the other. They had even set up third persons who had moved an application under Order I Rule 10. CPC. Hence after coming to the conclusion that the defendants were delaying the proceedings the learned Civil Judge recalled his order dated 23-8-1990. It has been argued by learned counsel for the appellants that moving amendments in the written statement cannot be a step to delay the proceedings. It was also argued that there was no. evidence to show that the other persons, who had moved an application under Order 1 Rule 10, CPC had actually been motivated by the appellants to move the said application. It was urged that the conclusion of the learned Civil Judge was based on surmises and, therefore was not a proper exercise of the discretion vested in the proviso to Rule 4 of Order 39, CPC.
(3.) LEARNED counsel for the respondents urged that from the very beginning the defendants had couched their written statement so that there may be necessity to amend it from time to time. It was also urged that moving of application under Order 1 Rule 10, CPC by other person was also an act motivated by the defendants. They had come just one day before the date of final hearing. This was certainly a step to frustrate the disposal of the suit. Rule 4 of Order 39, CPC says that an order for injunction may be discharged or varied or set aside by the court on application made thereto by any party dissatisfied with an order made under Rules 1 and 2 of Order 39 of the CPC. A proviso has been added, by U. P. State Legislature, at the end of this Rule. It reads as under : "Provided 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 dilating the proceeding or Is otherwise abusing the process of Courts, it shall set aside the order for injunction".;