JUDGMENT 1. - This Miscellaneous Appeal under Order 43 Rule 1(r) C.P.C., has been directed against the order dated 5.11.1993, passed by Additional District and Sessions Judge No. 1, Jaipur City, Jaipur, allowing the application of the defendant-respondents under Order 39 Rule 4 C.P.C. 2. Brief relevant facts of the case are that on 5th July, 1986, the plaintiff appellant filed a suit for specific performance of an agreement with the allegations that on 20.2.1978, the defendant-respondents entered into an oral agreement with the plaintiff-appellant for leasing out the, disputed lands for the period of 60 years. Later on, on 8th April, 1978, a written agreement was executed between the parties to lease out the disputed land to the plaintiff-appellant. In accordance with the said agreement, the plaintiff paid rent of the disputed land to the defendants and obtained possession on 25th August, 1980. Since then the appellant is in possession of the disputed land. Now the defendants want to dispossess the appellant. Under these circumstances, the plaintiff filed a suit for specific performance and injunction against the defendant respondents. The plaintiff-appellant also filed an application for temporary injunction and prayed that the defendant-respondents be restrained from transferring the disputed land to any other person and from dispossessing plaintiff appellant from the same. The defendant-respondents filed a detailed reply of the plaint and alleged that the plaintiff appellant committed breach of the agreement and under these circumstances the agreement was cancelled by them. 3. The trial Court vide its order dated 31st July, 1986, directed both the parties to maintain status-quo. This order was subsequently continued after hearing defendants on 18th October, 1986. 4. On 2nd September, 1989, the defendants filed an application under Section 151 C.P.C. with the allegations that the plaintiff paid holding rent of the disputed land till 19th July, 1983; that thereafter the plaintiff stopped the payment of holding rent and that the defendants had already moved the Jaipur Development Authority for granting permission for construction of commercial complex on the disputed land but on account of the injunction order, they have been deprived of using their own land. it has been further mentioned that the defendants have been suffering loss of Rs. 10,000/- per month. it has been further mentioned that the defendants have been suffering loss of Rs. 10,000/- per month. The suit is likely to take several years and under these, circumstances, the injunction granted by the trial Court on 31st July, 1986, which was confirmed on 18th October, 1986, be modified and the plaintiff appellant he directed to pay the holding rent with interest at the rate of 18% p.a. from 31st July 1986, and to continue to pay the same till the decision of the suit. 5. The plaintiff filed reply to the said application, in which he alleged that the order dated 18th October, 1986, was passed after hearing counsel for the respondents and with their consent and as such the said order can not be modified. He further alleged that he was ready and still willing to pay the rent to the defendants, provided they execute lease-deed of the disputed land in his favour. 6. The Additional District Judge No. 1, Jaipur City, Jaipur, vide his order dated 5th Nov., 1993, came to the conclusion that under the facts and circumstances of the case the order of temporary injunction has caused undue hardship to the defendants and as such he directed the plaintiff to make the payment of arrears of rent to the. defendants respondents within a period of two months and to continue to pay Rs. 4,000/- of the rent every month in accordance with the agreement. This order has been challenged by the plaintiff appellant in this appeal. 7. I have heard Shri S.K. Keshote, counsel for the plaintiff appellant and Shri B.P. Agrawal, counsel for the defendant-respondents and gone through the record. 8. Shri Keshote argues that the application submitted by the defendant-respondents under Order 39 Rule 4 C.P.C. is not maintainable. The order dated 18th October, 1986, was passed with the consent of the defendant-respondents. There is no change in the circumstances and as such the order of injunction can not be varied or modified. He submits that delay in disposal of the suit can not be attributed to the plaintiff-appellant. He submits that on account of injunction order, on the one hand the plaintiff is also deprived of the use of the disputed land and on the other hand the trial court has directed the plaintiff-appellant to pay the arrears of rent to the defendants. He submits that on account of injunction order, on the one hand the plaintiff is also deprived of the use of the disputed land and on the other hand the trial court has directed the plaintiff-appellant to pay the arrears of rent to the defendants. He further submits that on the ground of delay, it can not be said that the order of injunction causes undue hardship to *the defendants. The provisions of Order 39 Rule 4 are equitable provisions, Court has to consider the hardship not only of the plaintiff but of the both the parties. If there was any delay in the disposal of suit, the delay also caused undue hardship to the plaintiff-appellant as the agreement to lease out disputed land was for a period of 60 years and if there is delay, the plaintiff is going to suffer instead of defendant-respondents. He submits that in case the appellant is allowed to use the property, he is ready and willing to pay all the arrears of rent. In support of his arguments, he placed reliance on Sitaram Madan Ahir v. Rajkunwarbai and others, AIR 1959 Madhya Pradesh 275 , and Govind Ramanuja Das Goswami v. Vijaramaraju and Another, AIR 1929 Madras 803 . He further submits that the trial Court has further committed serious illegality in directing the plaintiff-appellant to pay the arrears of rent from 20th July, 1983, whereas the defendants in their application demanded the rent from 31st July, 1986. The trial Court has granted excess relief, which was not even prayed by the defendant-respondents. He further submits that at the best the plaintiff can be directed to pay the rent from the date when the order of injunction is varied and. not from the retrospective date. 9. On the other hand, counsel for the defendant-respondents argues that according to the agreement the plaintiff was entitled to put in possession only on execution and registration of the lease deed and not prior to that. He submits that according to the oral agreement dated 20th February, 1978, the plaintiff has paid the holding rent of the disputed land from the date of agreement but subsequently he committed default' in the payment of rent and as such the agreement was cancelled by the defendant-respondents. He submits that according to the agreement even if the agreement is cancelled, the plaintiff is liable to pay holding rent. He submits that according to the agreement even if the agreement is cancelled, the plaintiff is liable to pay holding rent. He submits that on account of injunction order dated 31st July, 1986, the defendants have been deprived of using of their valuable land. He submits that at the time when the order was confirmed, it was not expected that the decision of the suit will take such a long time.He submits that the order of Injunction has caused undue hardship to the defendants, in as much as the defendants have been unnecessarily deprived of using of their land and as such the trial court was justified in amending the said order. In support of his arguments, he placed reliance on Bepin Krishna Sur and others v. Gautam Kumar Sur and Ors., 1985 Calcutta Weekly Notes 1980-1, 893 . He lastly argues that the trial court has exercised its jurisdiction in proper manner and unless this Court comes to the conclusion that the order is arbitrary or perverse or capricious or in disregard of sound legal principles, this Court should not interfere with the discretion exercised by the trial court and in support of this argument, Shri Agrawal placed reliance on Smt. Vimla Devi v. Jang Bahadur, 1977 RLW 326 . 10. Order 39 Rule 4 C.P.C. reads as below:- 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: Provided that if in an application for temporary injunction or any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice: Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation 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. (Emphasis supplied). (Emphasis supplied). 11. The second proviso of this order provides that where an order for injunction has been passed after giving to a party an opportunity of being heard the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation 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 trial Court found that the order of temporary injunction has caused undue hardship to the defendants and on that ground that trial court has modified that order. It is not in dispute that the plaintiff paid holding rent of the disputed land to the defendants from the date of oral agreement when the plaintiff was not given possession. Clause 4 of the agreement provides that the possession of the disputed land shall be handed-over to the plaintiff on execution and registration of lease-deed. Under these circumstances, the defendants were entitled to use the disputed land till the date of execution and registration of the lease deed but on. account of the injunction order, the defendants have been deprived of the use of the disputed land. Under these circumstances, in my view the trial court rightly came to the conclusion that the injunction order has caused undue hardship to the defendants.In my view, the trial court was justified in modifying the injunction order but the defendants are not entitled to holding rent/mense profits of the disputed land from July 20, 1983, but only from the date of injunction order i.e. July 31, 1986, when they were deprived of use of the disputed land. The defendants have also claimed holding rent from the said date. I do not agree with the submissions of Mr. Keshote that at the best, the defendants are entitled to mense profits/holding rent from the date of the order passed by the trial court. Order 39 rule 4 gives discretion to the trial court to vary the injunction order. Under these circumstances the injunction order can be varied from the date when it was passed. The authorities cited by the counsel for the appellant are under the unamended Civil Procedure Code and as such they are not relevant for the decision of this appeal. 12. Under these circumstances the injunction order can be varied from the date when it was passed. The authorities cited by the counsel for the appellant are under the unamended Civil Procedure Code and as such they are not relevant for the decision of this appeal. 12. Consequently, I allow the appeal in part and direct the appellant to pay to the defendant respondents arrears of holding rent/mense profits from the date of injunction order i.e. 31st July, 1986, and continue to pay the same in accordance with the agreement till the date of decision of the suit. One month's time is granted to the appellant to pay the same. I also direct the appellant to conclude his evidence within six months from today. Thereafter, the respondents will conclude their evidence within one year. The parties will. produce their witnesses before the Court but if any witness is not under the control of a party and if he applies to the Court for summoning the witnesses, the Court will give all assistance to the party for securing attendance of the witnesses. In case the witnesses do not turn up inspire of service of the summons, the Court will not hesitate in issuing warrant for summoning the witnesses. The trial Court is directed to decide the suit within two years from the date of receipt of a copy of this order. 13. Record of the trial court be sent back immediately. 14. with these observations, the appeal is allowed in port. 15. Parties to their own costs.Appeal partly accepted. *******