JUDGMENT K. J. Sengupta, J.:- The instant appeal has been preferred against the judgment and order dated 4th July 2012 passed by the learned Single Judge refusing to vacate interim order passed earlier. The fact which has triggered to filing of the Writ Petition being No.11813 (W) of 2011 along with other matters is shortly put hereunder: The Central Electric Regulatory Commission (hereinafter as Commission) one of the respondents in the appeal as well as in the writ petition in exercise of the power granted under terms and conditions of Tariff Regulations inserted new clause (4) in the Regulation 5 of CERC by which the Commission has empowered itself to grant provisional tariff up to 95% of the annual fixed cost of the project claimed in the petition subject to adjustment after the final tariff has been issued and the said amended provision was sought to be applied for revising the tariff for the period 2009-2014 and thereafter decided provisionally by an order dated 23rd June, 2011 allowing 70% annual fixed cost of the project as has been allowed to NTPC. The tariff application of appellant made before the CERC for determination of 2009-14 has been published and no objection has been received from any corner. As per the aforesaid order dated 23rd June, 2011 of the Commission the appellant started raising bills for electricity charges at enhanced rate. Soon thereafter the respondent-writ petitioner along with other persons affected, filed writ petitions challenging validity and legality of the said Regulation 5(4) and also the above order passed thereunder taking various grounds. It appears from the record that identical challenge was made against the decision of the Commission of amendment of the Regulation and also order passed thereunder, and further demand of payment by the appellant at an increased rate in the Jharkhand High Court. In the writ petitions filed in the Jharkhand High Court interim order was passed in effect restraining the appellant herein from demanding any amount on the basis of the increased tariff. During pendency of the writ petition in the Jharkhand High Court above batch of writ petitions were filed in this Court also. In the writ petitions filed in the Jharkhand High Court interim order was passed in effect restraining the appellant herein from demanding any amount on the basis of the increased tariff. During pendency of the writ petition in the Jharkhand High Court above batch of writ petitions were filed in this Court also. It appears from the record that after hearing all the parties the learned Single Judge passed an interim order on 11th August, 2011 restraining the appellant from disconnecting the electricity supply line of the writ petitioners in connection with the aforesaid demand made in terms of the order passed by the Commission. From the record it appears that from time to time this interim order was directed to continue and till date as stated hereinafter it was allowed to be continued by both the parties. Thereafter on 21st March, 2012 Jharkhand High Court dismissed all the writ petitions and interim order passed thereunder was vacated. The writ petitioners in the Jharkhand High Court thereafter filed an SLP against the aforesaid order of dismissal before the Supreme Court. The Hon’ble Supreme Court entertained the hearing of the SLP, but declined to pass any interim order. Soon thereafter on 17th day of April, 2012 an application was filed before the learned Single Judge for vacating of the interim order taking the ground that identical point has been decided by Jharkhand High Court against all the consumers and in favour of DVC and upheld action and decision of the Commission. Therefore there was no justification of continuation of the interim order passed earlier. It is also alleged in the application that the basis of passing interim order by the learned Single Judge and as extended from time to time was interim relief granted by Jharkhand High Court. When this interim order disappeared with the dismissal of the writ petitions followed by refusal to grant interim relief by the Hon’ble Supreme Court there is no plausible reason to stay the hands of the DVC with subsisting interim order. After dismissal as above, in Jharkhand area most of the consumers are now compelled to pay dues at an enhanced rate as determined by the Commission. After dismissal as above, in Jharkhand area most of the consumers are now compelled to pay dues at an enhanced rate as determined by the Commission. Moreover it is also pleaded that there has been hardship as their future development programme and project undertaken by the appellant have to be suspended and it has become very difficult to run with the constant borrowing of fund from the bank. The above application was seriously opposed by the respondents-writ petitioners after hearing and considering all the facts and circumstances of this case learned Trial Judge refused to vacate interim order, and rather proceeded to hear all the writ petitions on day to day basis. This Court while admitting the appeal did not grant any interim relief but to decide here out this appeal expeditiously. On the first day of hearing few persons came to intervene in the appeal though they are not parties before the learned Trial Judge in the writ petition filed by the respondent Nos.1 and 2 but they submit that they might be affected if any adverse decision is passed by the Court, therefore on the applications of, one Jai Balaji Industries Limited being ASTA 123/2012, one M/s. Shri Badrinarain Alloys, Steels Limited and one Maithan Alloys Limited being ASTA No.125 of 2012, ASTA No.120 of 2012 orders of intervention was allowed and they were allowed to make submission. 2. Mr. Kalyan Bandopadhyay, learned Senior Advocate appearing for the appellant highlighting aforesaid fact as briefly recorded by us submits that the findings of the learned Single Judge in the impugned judgment and order are absolutely contrary to records. It would appear from order dated 11th August, 2011 that the suggestion of the learned counsel appearing for the different parties was confined to the extent of immediate disposal of the writ petition and there was no suggestion or concession of passing any interim order as it was done. Even in the records such suggestion or concession could not be found. If the order dated 2nd August 2011 is carefully read it would appear that the learned counsel appearing for the respondents did not argue on the issue of balance of convenience, prima facie case or irreparable loss and injury which are preconditions to be decided before any interim order is passed or refused. If the order dated 2nd August 2011 is carefully read it would appear that the learned counsel appearing for the respondents did not argue on the issue of balance of convenience, prima facie case or irreparable loss and injury which are preconditions to be decided before any interim order is passed or refused. It would rather appear that the sole criteria of passing interim order was the interim order passed by the Hon’ble Division Bench of the Jharkhand High Court. He argues that Hon’ble Single Judge failed to appreciate when the respondent had obtained the interim order solely on the ground that the Hon’ble High Court of Jharkhand had passed the interim order and this interim order should have been vacated when the order of the Jharkhand High Court was not in existence on the date of making application. The Division Bench judgment of the Jharkhand High Court on identical issue has been pleased to dismiss the identical action and vacated interim order the learned Single Judge ought not to have ignored on the plea that it has got no binding effect just because it was passed by the different High Court. He submits that the judgment of the High Court other than its own High Court in essence has to be followed as a binding precedent and it has been held so in a Division Bench judgment of this Hon’ble Court reported in 1998 (4) SLR 664. 3. Mr. Bikash Ranjan Bhattacharya, learned Senior Advocate appearing for the respondents-writ petitioners drawing our attention to the series of orders passed by the learned Single Judge right from 2nd August, 2011 till 31st of January, 2012 submits that it would appear from the order dated 11th August 2011 the interim order was passed merely on suggestion and concession of all the parties and the interim order passed by the Jharkhand High Court was not the basis of passing the interim order. This interim order was allowed to continue by the appellant, and no appeal has been preferred therefrom. Moreover all the writ petitions are now being heard by the learned Trial Judge almost on day to day basis even the argument of the writ petitioner herein are concluded. 4. Moreover he contends that it would appear the Commission was asked by order dated 20th September, 2011 to determine the final tariff in accordance with law. Nothing has been done as yet. 4. Moreover he contends that it would appear the Commission was asked by order dated 20th September, 2011 to determine the final tariff in accordance with law. Nothing has been done as yet. Had the final determination been made all the parties would have been heard the proposed hike in tariff would have been reduced to a great extent. 5. He submits further that the dismissal of the writ petition in Jharkhand High Court cannot be subsequent event or ground for discharging of the interim order passed earlier upon hearing the parties. According to him both the parties at the time of hearing at the interim stage suggested that all the writ petitions should be heard out on merit and pending final decision the interim relief was also suggested by the parties. In true sense aforesaid interim order was passed by consent and this can only be varied by consent, and not otherwise. 6. Moreover he contends the story of financial hardship of the appellant is absolutely afterthought as it was persisting even on the date of admission of the writ petition and passing interim order earlier from which no appeal was preferred, therefore there cannot be any change of circumstances subsequent to passing of aforesaid interim order. He urges that dismissal of the writ petition by final judgment of the Jharkhand High Court cannot be any material for vacating interim order and it is not a binding precedent on this Court as it is correctly observed by the learned Trial Judge. The appellant herein is well protected with a thousand crore of rupees which is lying with its hand, and was asked to be refunded by the order of this Court which has been challenged before the Supreme Court and by virtue of interim order of the Supreme Court corpus of aforesaid amount must be utilized for its own gain and benefit. At this stage balance of convenience demands that interim order should not be disturbed rather hearing of the writ petition should be expedited and indeed the learned Trial Judge is hearing the matter almost on day to day basis and expeditiously. 7. Learned counsel for the aforesaid intervenors have supported the argument of Mr. At this stage balance of convenience demands that interim order should not be disturbed rather hearing of the writ petition should be expedited and indeed the learned Trial Judge is hearing the matter almost on day to day basis and expeditiously. 7. Learned counsel for the aforesaid intervenors have supported the argument of Mr. Bhattacharyya and in addition thereto it has been argued on behalf of M/s. Shri Badrinarain Alloys and Steels Limited (ASTA 125 of 2012) that precondition for vacating interim order as provided under Order XXXIX Rule 4 of the Code of Civil Procedure is not satisfied, particularly when the order was passed by consent. He also argues Section 64(3) of Electricity Act, 2003 prescribes within 120 days from the date of receipt of the application, the Commission shall fix the final tariff. The application was filed by DVC on 26th August, 2009 and 120 days have elapsed on 23rd December, 2009. Under the circumstance no provisional Tariff can be fixed on 23rd June, 2011, after expiry of time of 120 days and that too after DVC had withdrawn its application for fixation of provisional tariff. When the statute provides 120 days as the outer limit for fixing the final tariff, the letter or spirit of the statute is to expedite the assessment process, final tariff has not yet been assessed despite order passed by this Court. 8. After hearing the learned counsel for the parties and having gone through the records only point for decision of this Court in appeal is whether the learned Trial Judge was justified in refusing to vacate the interim order on the facts stated in the application of the appellant. As it has been appropriately argued by the learned counsel for the respondents that there has been no dispute that interim order passed by this Court on 11th August 2011 and which was allowed to be continued by the appellant till the date of making the application before the learned Trial Judge, stretching over nearly one year and those orders were passed upon giving hearing to both the parties and no appeal has been preferred from the aforesaid orders. In the premise we need to examine whether any ground has been made out for discharge of the interim order passed earlier. In the premise we need to examine whether any ground has been made out for discharge of the interim order passed earlier. The procedure for vacating and discharging interim order in writ proceeding passed on contest are regulated by the provisions of Order XXXIX Rule 4 of the Code of Civil Procedure by virtue of the Rule 53 of Writ Rules framed by this Court. The portion which is relevant for the purpose of dealing with this appeal is quoted herein: “Order XXXIX R.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 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.” 9. Now it is incumbent for the Court to examine whether there has been a change in circumstances or not. In the context of the submission we need to examine tenor of the interim order passed on 11th August, 2011 accordingly we set out the same: “After hearing Mr. Advocate General appearing for the Commission, Mr. Sengupta appearing for the petitioners and Mr. Mukherjee appearing for the Corporation and considering the suggestions given by them for immediate disposal of the art.226 petition, I am of the view that it will be appropriate to admit the petition keeping the question of its maintainability open and ask the Corporation not to disconnect supply to the petitioners alleging failure to pay energy charge in terms of the impugned order of the Commission provisionally determining the tariff. It is to be noted that in some art.226 petitions moved before the Jharkhand High Court an interim order has been made restraining the Corporation from recovering energy charge from the petitioners concerned in terms of the order of the Commission determining provisional tariff. It is to be noted that in some art.226 petitions moved before the Jharkhand High Court an interim order has been made restraining the Corporation from recovering energy charge from the petitioners concerned in terms of the order of the Commission determining provisional tariff. For these reasons, I admit the petition keeping the question of its maintainability open and order that until next hearing the Corporation shall not disconnect supply to the petitioners alleging failure to pay energy charge in terms of the order of the Commission determining provisional tariff. The respondents shall file opposition by August 17, 2011; advance copy of the reply, if any, shall be served by August 22, 2011. To daily list for hearing on August 23, 2011. Certified xerox.” 10. On careful reading of the same we are unable to accept the contention of Mr. Bandopadhyay that the above interim order was passed solely relying on the interim order passed by the Jharkhand High Court rather we think as rightly argued by Mr. Bhattacharyya and supporting group of the Intervenors that learned Trial Judge while passing interim relief merely noted the factum of passing interim order by Jharkhand High Court, it was not the basis of passing the interim order. The basis in our considered view is the suggestion if not concession, made by the learned counsel appearing for the parties including appellant too before learned Trial Judge and this interim order was allowed to continue without any objection whatsoever not only in relation to writ petition in connection with the appeal but also in the batch of the writ petitions. 11. We therefore cannot accept the submission of Mr. Bandopadhyay that dismissal of the writ petition in Jharkhand High Court consequently vacating interim order would be a material or ground for discharge of the interim order passed earlier, but certainly it is reason for withdrawing of earlier concession and for calling upon to relook the situation. 12. Now coming to the hardship aspect of the matter as also pleaded in the petition we find the alleged hardship had been persisting on the date of passing interim order on 11th August, 2011 and no fresh hardship had developed, rather on dismissal of the writ petition by Jharkhand High Court followed by refusal to pass interim order by the Supreme Court helped the appellant to mop up additional revenue. It also appears from the record that as rightly pointed out by learned counsel for the Intervenors and also Mr. Bhattacharyya that large amount are at the hands of the appellant as the Supreme Court has granted stay of operation of the order of refund of the excess amount realized and this amount appears to be several thousand crores. 13. Under these circumstances as discussed above the consideration of the prima facie case or balance of convenience by the learned Trial Judge is wholly immaterial in this case for the appellant through its learned counsel made concession before the Court that such aspect of the matter should not be dealt with, rather wanted expeditious hearing of the writ petition. 14. When the writ petition is being heard finally with interim order passed upon suggestion and concession it would be grossly unjust if it is vacated. The impact and effect of the Division Bench of the Jharkhand High Court may be a factor at the time of deciding the writ petition finally as this judgment cannot be ignored as correctly pointed by Mr. Bandopadhyay on the strength of the pronouncement of Division Bench of this Court reported in 1998 (4) SLR 664. Obviously the judgment is to be examined by the learned Single Judge as to its applicability, particularly when the point has been taken and argued before us by the respondents that the said judgment has not decided all the issues as canvassed in the writ petition pending before this Court. 15. It is also to be noted admittedly the appellant has not applied for vacating interim order in any other writ petition and has picked up the present writ petitioner, singularly of course there is no bar under law for doing so for the litigant is to decide against whom action should be brought. In the factual backdrop of identical cause of action and/or grievance in several actions if interim order is vacated unconditionally in one or two of such petitions in others kept operative the decision would be utterly discriminatory and violative of Article 14 of the Constitution of India. We therefore of the view that the learned Trial Judge is not wrong absolutely while refusing to vacate the interim order. 16. We therefore of the view that the learned Trial Judge is not wrong absolutely while refusing to vacate the interim order. 16. Considering all the facts and circumstances of this case and particularly noting the fact that the writ petitions are being heard, at this stage vacating interim order is not justified, but at the same time it is to be noted that number of writ petitions have been filed for the same grievance and are being heard. Thus delay in conclusion of hearing and decision may not be inconceivable. In that case respective commercial interest of the parties which has tremendous impact of regional economy would be affected, unless some measure is taken. Keeping in view all the considerations as above we dispose of the appeal by the following orders. 17. We desire that the writ petition should be heard out preferably within two months from the date of production of this order upon giving day to day hearing, unnecessary adjournment should be avoided. If for any reason the writ petition could not be heard out within two months from the day mentioned above it would be open for the appellant to demand for payment of the dues of the respondent/writ petitioner and also Intervenors before us at the enhanced rate as decided provisionally by the Commission without prejudice and if the writ petitioner-respondent and intervenor pays the amount so to be demanded, the appellant shall furnish bank guarantees in any nationalized Bank in equivalent amount simultaneously in favour of those persons (writ petitioner herein and Intervenors) who shall be paying so demanded. In case of default of payment in terms of this order after demand is made it would be open for the DVC to take steps in accordance with law. This arrangement of payment as above and furnishing Bank guarantee(s) will abide by the result of the writ petition. In the event the writ petitions are dismissed the Bank guarantees so furnished shall be returned forthwith. 18. In the event the writ petitions succeed. Bank guarantee may be invoked forthwith. This measure has to be taken because we notice fresh dispute and controversy may arise in relation to refund as it had happened in recent past. 19. In the event the writ petitions are dismissed the Bank guarantees so furnished shall be returned forthwith. 18. In the event the writ petitions succeed. Bank guarantee may be invoked forthwith. This measure has to be taken because we notice fresh dispute and controversy may arise in relation to refund as it had happened in recent past. 19. As far as appeal against the order of amendment is concerned, after having regard the submission of the learned Counsel appearing for the parties, we are of the view that amendment is very inconsequential in nature. Moreover, order of this nature is not appealable at all. But it does not alter the cause of action nor affects anyone’s right so as to call it as the judgment within the meaning of the Cause 15 of the Letters Patent. Therefore we dismiss the appeals. There will be no order as to costs. Asim Kumar Mondal, J.: I agree.