Order XXXIX Rule 4 CPC: Discharge, Variation or Setting-Aside of Temporary Injunctions

Order XXXIX Rule 4 of the Code of Civil Procedure, 1908: Jurisprudential Evolution and Contemporary Application

1. Introduction

Temporary injunctions constitute one of the most powerful interim remedies available in Indian civil procedure. While Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (“CPC”) empower courts to grant such relief, Rule 4 supplies the counter-balance, authorising discharge, variation or setting-aside of an injunction when justice so requires. The present article critically analyses Rule 4, traces its legislative history, and evaluates the principal judicial pronouncements—particularly those of the Supreme Court—that sculpt its present contours. Emphasis is placed on the grounds of “change of circumstances” and “undue hardship,” the interplay between Rule 4 and appellate remedies, and the doctrinal convergence between procedural safeguards and substantive equity.

2. Statutory Text and Legislative History

Order XXXIX Rule 4 (as amended by the Code of Civil Procedure (Amendment) Act 104 of 1976) reads, in substance:

Any order for an injunction may be discharged, varied or set aside by the court on application of any party dissatisfied with such order. First Proviso — Where an injunction has been granted without notice, the court shall endeavour to finally dispose of the application within thirty days; failing which, reasons must be recorded. Second Proviso — An ex-parte injunction shall not be discharged, varied or set aside unless (a) there is a change in circumstances, or (b) the injunction causes undue hardship to the opposite party.

The 1976 amendment introduced both provisos to curb abuse of ex parte injunctions, mandating expedition and limiting discretionary revocation. Rule 4 is therefore not merely remedial; it is prophylactic, reinforcing principles of natural justice and proportionality.

3. Conceptual Foundations

3.1 Equity and the Principle of Balancing

Injunctions are equitable; hence their continuance is conditioned on fairness. Rule 4 operationalises this equity by allowing reconsideration when either the factual matrix or the balance of convenience shifts (Bepin Krishna Sur v. Gautam Kumar Sur, 1980)[1].

3.2 Change of Circumstances

Courts have utilised “change of circumstances” elastically—ranging from legislative alteration to discovery of suppressed facts. For example, in Morgan Stanley Mutual Fund v. Kartick Das (1994) the Supreme Court dissolved an interim restraint because statutory clarification under the Consumer Protection Act rendered the original premise untenable[2].

3.3 Undue Hardship

The second proviso was interpreted in Bepin Krishna Sur to include hardship “harsh or oppressive” relative to the object of injunction[1]. The focus is on disproportionality—an analytical tool aligned with Article 14 jurisprudence.

4. Procedural Safeguards after the 1976 Amendment

The thirty-day mandate was squarely examined in A. Venkatasubbiah Naidu v. S. Chellappan (2000) where the Supreme Court upheld vacation of an ex parte injunction for non-compliance with Rule 3-A’s timeline, reading Rules 3-A and 4 conjunctively[3]. The decision crystallised two propositions:

  • Extended ex parte relief without recorded reasons undermines the provisos to Rule 4.
  • Appellate intervention (Order 43 Rule 1(r)) is preferable to constitutional remedies under Article 227 where statutory avenues exist.

5. Concurrency of Remedies: Rule 4 Application vs Appeal

High Court authority confirms that a party aggrieved by an interim injunction may either move the trial court under Rule 4 or file an appeal under Order 43 Rule 1(r); the remedies are concurrent (N. Lakshmana Doss v. Government of T.N., 2009)[4]. The Supreme Court has echoed this in substance, holding that appellate scrutiny promotes hierarchical discipline while Rule 4 enables swift trial-level correction (Jaipur Municipal Corporation v. C.L. Mishra, 2005)[5].

6. Analytical Survey of Leading Authorities

6.1 Supreme Court

  • Cotton Corporation of India Ltd. v. United Industrial Bank Ltd. (1983) – Although centred on Section 41(b) of the Specific Relief Act, the Court underscored that injunctive relief cannot fetter statutory rights or access to courts. When such overreach is revealed, Rule 4 empowers discharge[6].
  • Morgan Stanley Mutual Fund – Demonstrated revocation where the injunction was granted on an erroneous view of law, tying “change of circumstances” to juridical clarification[2].
  • Kashi Math Samsthan v. Shrimad Sudhindra Thirtha Swamy (2009) – Reiterated that absence of prima facie case warrants refusal or dissolution of injunction; Rule 4’s equitable discretion mirrors the tripartite test of prima facie case, balance of convenience, and irreparable injury[7].

6.2 High Courts

  • Bepin Krishna Sur (Cal HC, 1980) – Detailed exposition of undue hardship and changed circumstances.
  • Iqbal Singh v. Chanan Singh (P&H HC, 1965) – Clarified appealability of orders refusing ex parte injunctions.
  • Nanda Roy v. Gyananidhi Trust (Cal HC, 2015) – Liberal construction of remedial provisions; appeal lies even against an order refusing interim relief and issuing notice.
  • Midche Linge Gowda v. Channamma (Karnataka HC, 1973) – A “status quo” order without reasons is susceptible to appellate correction or discharge under Rule 4.

7. Standards for Discharge or Variation

  1. Evidentiary Threshold. The applicant bears the burden of demonstrating (i) material change or (ii) hardship disproportionate to the injunction’s objective.
  2. Good-faith Disclosure. Suppression of facts at the time of grant illumines the court’s equitable jurisdiction to vacate (Morgan Stanley).
  3. Temporal Dimension. Courts examine delay both in seeking discharge and in prosecuting the suit (Rule 3-A and Venkatasubbiah Naidu).
  4. Public Interest. Recent decisions stress systemic costs of prolonged interim orders (Upendra Nath Srivastava, 2024 Allahabad HC).

8. Injunctions, Rule 4 and Section 41(b) of the Specific Relief Act

Section 41(b) prohibits injunctions restraining judiciary proceedings. Where an interim order inadvertently offends this bar, Rule 4 is the procedural vehicle for recall. Cotton Corporation epitomises this interface—substantive illegality (Section 41(b)) triggers procedural correction (Rule 4).

9. Critique and Policy Considerations

Despite the safeguards, empirical observation indicates frequent prolongation of interim orders. Scholars argue that Rule 4’s effectiveness is diluted by (i) inadequate recording of reasons, (ii) judicial hesitation to impose costs, and (iii) litigant strategy of parallel appeals. Legislative refinement—such as mandatory cost-consequences for unfounded continuance—could reinforce deterrence.

10. Conclusion

Order XXXIX Rule 4 is the fulcrum upon which the equilibrium of interim relief rests. The Supreme Court’s post-1976 jurisprudence—Venkatasubbiah Naidu, Morgan Stanley, Kashi Math Samsthan—has transformed the rule from a procedural afterthought into a substantive guarantor of fairness. By conditioning dissolution on demonstrable change or hardship, Rule 4 reconciles the need for swift provisional justice with the imperative of preventing inequitable advantage. Nevertheless, its promise is contingent on rigorous judicial application, faithful adherence to the requirement of reasoned orders, and vigilant appellate oversight.

Footnotes

  1. Bepin Krishna Sur & Ors. v. Gautam Kumar Sur & Ors., 1980 SCC OnLine Cal 77.
  2. Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225.
  3. A. Venkatasubbiah Naidu v. S. Chellappan & Ors., (2000) 7 SCC 695.
  4. N. Lakshmana Doss v. Secretary, Govt. of T.N., 2009 SCC OnLine Mad 1804.
  5. Jaipur Municipal Corporation v. C.L. Mishra, (2005) 8 SCC 423.
  6. Cotton Corporation of India Ltd. v. United Industrial Bank Ltd., (1983) 4 SCC 625.
  7. Kashi Math Samsthan v. Shrimad Sudhindra Thirtha Swamy, (2010) 1 SCC 689.