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indianlawlearner   26 September 2023

Order 39 rule 4 on division bench osa order

Temporary injunction Order was obtained by misleading the Court. 1st Defendant appealed in OSA but the Division Bench confirmed the Single Bench Order. The Defendants are aggrieved by the Order of the single bench and the division bench.

Now one of the Defendants is deceased and legal heirs are brought on record.

Need clarification on the following

1) Will the death of deceased defendants be considered as change in circumstances?

2) Can the impleaded legal heirs go ahead and appeal?

3) Should the impleaded legal heir appeal against the single bench order or the Division Bench order to set aside?

4) Will Order XXXIX Rule 4 be applicable to OSA orders too?

Kindly clarify


 4 Replies

T. Kalaiselvan, Advocate (Advocate)     27 September 2023

O. 39 R. 4 is permissible only if the party seeking a temporary injunction, made a misleading statement 

In a judgment by Delhi HC, the 

Court stated the impugned order notes 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.  

Court observed that second proviso to Order 39 Rule 4 CPC lays down that 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..

The full bench of the apex court (AIR 1970 All 376, Zila Parishad, Badaun&Ors. v. Brahma Rishi Sharma) has held:-

" that against an ex parte order granting temporary injunction the aggrieved party has two options; either to approach the same courti.e (Order 39 Rule 4), who had passed ex parte order for any relief or to file an appeal under Order 43 Rule 1 of the Code.

the language and the object of Rule 1(r) of Order 43 and the scheme of Rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte order of injunction. As soon as an interim injunction is issued and the party affected thereby is apprised of it, he has two remedies: (1) he can either get the ex parte injunction order discharged or varied or set aside under Rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided for under Order 43, Rule 1 (r), or (2) straightway file an appeal under Order 43, Rule 1 (r) against the injunction order passed under Rules 1 and 2 of Order 39. C.P.C. It is not unusual to provide for alternative remedies. For instance, when an ex parte decree is passed against a person, he has two remedies: either he may go up in appeal against the ex parte decree or he may seek to get the ex parte decree set aside by the same court.

Sumitra kumar   27 September 2023



Since the concurrent findings are made, appeal can lie in higher court. The fact not being changed by subsitution of parties over this order. Since I have not the facts involved in your case;therefore, unable to say more.


Thank you.

P. Venu (Advocate)     27 September 2023

You have not posted the material facts. How is it that the Court has been misled?

Dr. J C Vashista (Advocate and Legal Consultant)     28 September 2023

It is better to consult a local senior with relevant case file for proper appreciation of facts/ documents and advise 

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