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An application under Order 39 Rule 4 CPC is permissible only if in the application seeking temporary injunction or in the affidavit supporting such application, a party has made false and misleading statement in respect to a material particular and injunction was granted without notice to the opposite party. Where an order of injunction has been passed after giving to a party an opportunity of being heard, said order shall not be discharged, varied or set aside except where such discharge, variations 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 and the same was upheld by High Court of Delhi through the learned bench led by Justice Sanjeev Sachdeva in the case of BANK OF BARODA vs. UNION BANK OF INDIA & ORS. [CM APPL. 4514/2021] on 21.02.2022.

The facts of the case are that the plaintiff claimed that no goods were supplied by the respondent. As per the plaintiff, the documents attached by respondent no. 3 with the letter of credit, i.e., invoices and lorry receipts were forged. Respondent no. 3 had approached the bank for encashment of letter of credit.

Notice was served on respondent 3, however, no one appeared. Therefore, he was proceeded ex-parte. Appellant impugns order whereby the application filed by the appellant as also by respondent under Order 39 Rule 4 CPC have been dismissed.

The plaintiff’s counsel submitted that since plaintiff has already made the payment of the letter of credit to respondent No. 3, respondent no. 3 may not be interested in defending the appeal. Further, nothing had been brought on record to show that he had suffered any hardship or that there was any change in the circumstances.

Keeping in view the facts and circumstances of the case, the court held that the application filed does not satisfy the requirements of the second proviso to Order 39 Rule 4 CPC, therefore, the said orders do not warrant any modification or vacation under Order 39 Rule 4 CPC. Accordingly, the appeal was dismissed, since the Court did not find any merit in the appeal.

The Court observed that “an application under Order 39 Rule 4 CPC is permissible only if in the application seeking temporary injunction or in the affidavit supporting such application, a party has made false and misleading statement in respect to a material particular and injunction was granted without notice to the opposite party. Where an order of injunction has been passed after giving to a party an opportunity of being heard, said order shall not be discharged, varied or set aside except where such discharge, variations 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.”

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Judgment reviewed by – Shristi Suman