This article has been written by V. Krishna Laasya.
Generally, the term “interim” refers to temporary or provisional, that is a term which denotes anything that is not final.
Interim aka Interlocutory orders are those which are passed during the pendency of the suit or proceedings (lis pendens) and the rights, liabilities of the parties are generally not substantially decided as per the suit. These orders are not just those which decide the cause of action, but are those which decide the interceding course of action provisionally.
The orders are those which come up with a temporary adjudication between the time of commencement of suit and the final order thereof. These orders enable the protection of subject matter of the suit and aid in the due assistance of parties.
Illustration- If the suit relates to a demolition of a building, and then an interim order may be passed to stop the demolition, until the final order relating to the property is passed.
Inherent Powers of the Court
Court’s inherent power may be described over an intricate analysis of S. 151 of the Civil Procedure Code, 1908, where the two considerations laid down are- exercise of powers to meet ends of justice and to prevent abuse of process.
Courts are vested with the power to pass interim orders with main focus on disabling failure of justice to the innocent. There is no superior role or procedure that enables any organ to be able to override the provisions of S.151 of the Code and this showcases the interest of the Supreme Court in upholding justice. It is pertinent to bring out Ram Chand and Sons Sugar Mills Pvt. Ltd Barabanki v. Kanhayalal Bhargava, the contention was, subsequent to the pending first suit many events occurred and that there was no longer any use of the first suit.
The Court is invested with such powers relating to interim passing of orders owing to the necessity of being just and for convenience. On a generalized view, the Court may also exercise the power of granting interim orders by way of the Inherent Powers granted to prevent any abuse or Court process. Court has been instituted to make the ends of justice meet and a fragment of this can be seen by way of passing interim orders by the Court.
Conduct of suit and the litigation process is thus said to be enhanced by the Court by way of such interim injunctions.
Interim Order Provisions
- Court Payment (vide Order 24)
- Security of Costs (vide Order 25)
- Commissions (vide Order 26)
- Judgement preceded by Arrest (vide Order 38)
- Attachment before a judgement (vide Order 38)
- Injunction (vide Order 39)
- Interlocutory Orders (vide Order 39)
- Receiver (vide Order 40)
Injunction and law relating to the same is dealt with under:
- S. 36-42 of the Specific Relief Act, 1963.
- S. 94 (c) and 94 (e) of the Code for Civil Procedure, 1908.
- Order 39 of the Code for Civil Procedure.
Specific Relief Act
Through the lens of S. 37, the types of injunctions in existence are temporary which can be invoked till a time is specified or until court passes further orders at any stage of the suit which is further regulated by CPC, and perpetual where the defendant is enjoined from right assertion or act commission which is against the plaintiff and rights of the plaintiff which can be understood after due consideration to the facts of the case.
Any interlocutory injunction or temporary injunction requires the resolve of three tests laid down:
- Prima facie case presented by plaintiff.
- Balance of Convenience (favoured or on at par with the plaintiff).
- If such a prayer for an injunction is not granted, the plaintiff will face a serious and terrible injury.
It is a known and an age-old disputed fact that precedents generally do not lay down a similar thought and can be changed according to the facts and circumstances of the case. Thus, it would be efficient to bring to light the factors which have been placed reliance on in Dalpat Kumar v. Prahlad Singh, where the Hon’ble Supreme Court laid down that:
- Serious dispute in question and that dispute must be in such a way that the probability of relief is based on the facts presented before the Court.
- Court must interfere and grant this legal right.
- Greater harm may be prevented and there is comparative difficulty between mischief and inconvenience.
Though the grounds may be sine qua non have the same effect, it must be noted that the discretion and language used by the Court may have greater significance.
Under S. 38 of the Specific Relief Act, perpetual injunction can be granted to prevent any breach of obligation:
- When the obligation so contemplated to be breached arises from the existence of a contract by itself.
- Defendant intrudes or invades the right of property enjoyment of the plaintiff:
- Defendant is the plaintiff’s trustee.
- No standard of ascertainment of actual damage of such an act of invading.
- Invasion cannot cause adequate relief when tried to ascertain in terms of money.
- Injunction is essential, especially to prevent multiplicity of cases.
These injunctions are passed either through an ex-parte order or are passed if the defendant, even though present was not heard fully. It is generally observed that:
- Such injunctions are passed through severe damage caused to the petitioner in such a way that only an ex-parte order may grant relief.
- Notice of the act in dispute is noticed by the Court.
- Petitioner must obey the principle of uberimae fidei.
- Order is of a temporary nature.
Primary status of an injunction is generally considered to be of a status quo that is, a preservation of the matter in status quo is the primary reason to pass an order for an injunction.
Injunction is an equitable remedy and so, such governing principles must be followed while granting the same. To claim the application of equity, it is important that the person seeking the same for an injunction must come with clean hands.
Civil Procedure Code
Consideration, duration and stages of a suit, injunctions can be majorly classified into:
- Temporary Injunction
- Perpetual Injunction
Apart from the broad classification, injunctions may be mandatory where the injunction demands conduct and prohibitory which goes against the concept of conduct.
Under the Civil Procedure Code, 1908 S. 94 (c) provides for grant of an injunction of a temporary nature and S. 151 states that there is no limit or bar to grant injunctions for compliance of any order.
An injunction may more often than not be passed for management of behavior of the parties and modification if any change in the future.
Purpose– It may be understood that the property in dispute must be preserved till all the claims and rights of the property are adjudged and analysed by the Court. This is when the concept of injunction holds value and maintenance of the status quo is important. Injunction is in the nature of the protection to avoid any possible injury. Thus, it casts a protective relief on the parties.
The concept of injunction is useful in such a way that the interests between two parties, which are conflicting are kept in mind, while steps to resolve the same are analysed by the Court. Though this concept has many usages like ‘Protection’, ‘management’, ‘maintenance’ etc, it is eventually the Court which has the discretion to grant interim injunction (relief) or not.
Differentiation between Stay and Injunction
Stay includes a situation or occurrence of an event when a judge stops the proceedings temporarily or suspension of judicial proceedings.Injunction on the other hand refers to the restraint or prevention of a person from any action. Stay order is made to a court and requires that the court to which its made, gets the communication while injunction is issued to a party and comes into effect immediately after it is issued.
Principles affecting injunction
Generally, when a defendant threatens or coerces the plaintiff to cause injury in respect of property in dispute, the Court grants a temporary injunction affecting the restraint of commission of the act in question. Temporary injunction is thus, a provisional remedy that invokes the subject matter to retain or stabilize the condition in existence, and not a condition that was in the past or in the future.
Temporary injunction is said to be granted when the person seeking the same, has a right that is capable of being enforced by this way of injunction. The right is required to be concluded or conclusive.
Order XXXIX of the Civil Procedure Code, 1908 namely Rule 3 stipulates for the passing of an ex-parte temporary injunction in extreme urgency scenario. It must be noted that this rule does not provide for a separate application to be filed, rather the application should be a part of the bi-parte injunction application and urgency must be shown by the applicant to invoke the same.
Safeguards to preserve the guidelines
- Presence of urgency must be clearly shown and explicitly stated.
- Elements of grant of a temporary injunction must be clearly shown as elucidated in the precedents of the Supreme Court, either vide the Code of Civil Procedure or the Specific Relief Act, 1963.
- Recording of reasons for passing such an order must be clearly stated by the Court.
- Duty will always vest with the applicant to serve the notice, along with the plaint, affidavit and documents in support of the application for grant of temporary injunction. The applicant is then required to file an affidavit of having served the notice on the same day of the order or the next day.
- Under Rule 3A, it is mandatory on part of the Court that after it passes the ex-parte order, bi-parte proceedings shall be continued, processed and disposed within 30 days and the ex-parte order shall not be automatically vacated after expiry of 30 days but can be expanded beyond the time stipulated.
S. 95 of the Civil Procedure Code stipulates on the law of injunctions and deals with the compensation that is made available on obtaining injunction on grounds that are insufficient.
If any injunction of a temporary injunction has been granted if:
- It appears to the court that such an injunction has been obtained for insufficient grounds.
- Suit of the plaintiff fails and that there was no reasonable ground for having instituted the same in the first place.
The defendant may make an application and the Court may award compensation to be made payable by the plaintiff as it deems reasonable for the injury of reputation caused to him. Proviso states that the Court shall not award an amount that exceeds that of the pecuniary jurisdiction of the court.
S. 95 thus, provides for an alternative remedy, and not a preventive or protective remedy. This point of law has been elaborated in Bank of India v. lakshmimani Das and Ors, where it was held that a regular suit is not barred by omission as provided under S. 95 and if an application has been disposed of, then the disposed application will act as a bar to a regular suit. This means that the applicant must be able to prove that there was a probable reason for filing for an injunction and also prove that the defendant had a malicious motive.
In Mohini Misser and Ors v. Surendra Narain Singh and Ors, it was held that merely on the reason of malice, a suit cannot be instituted for injunction and limitation runs from the grant of a perpetual injunction. Temporary injunction that has also been granted in a suit stands dissolved by the grant of a perpetual injunction by the Court.
In order to determine whether an injunction can be granted or not, there is a requirement of the fulfillment of the triple test, namely:
- Presence of a prima facie case.
- Occurrence of an irreparable injury to the plaintiff.
- Balance of convenience.
Thus, an injunction, irrespective of whether it is temporary or perpetual, a triple test must be applied to categorize the dispute in hand.
Such an analysis is important as many aspects like Recording of reasons, equitable remedy, notice, when an injunction can be granted, when an injunction cannot be granted are all based on the understanding of the concept.
In order to be able to go to the understanding of the concept of injunctions, prior knowledge of interim orders is important. Efficiency and efficacy of the concepts are illustrated and though it is generally the Court’s discretion to decide the case, the guidelines laid down always help the parties and the laymen understand the essence of the concept and act accordingly.
- For the Civil Procedure Code, Orders and Rules-https://www.wipo.int/edocs/lexdocs/laws/en/in/in056en.pdf
- For the aspects of Interim Orders and the Inherent Powers of the Court- http://mja.gov.in/Site/Upload/GR/Title%20NO.62(As%20Per%20Workshop%20List%20title%20no62%20pdf).pdf
- Temporary and Perpetual Injunctions, Nuances- https://blog.ipleaders.in/temporary-permanent-injunction/#:~:text=Order%2039%20(Rules%201%20to,rather%20than%20a%20permanent%20solution.
- For a generalized view on the law of Injunctions in India- https://blog.ipleaders.in/all-about-the-law-of-injunction-india/
- For injunctions and Inherent powers of the Court- https://acadpubl.eu/hub/2018-120-5/3/213.pdf
- Anushka, Vipul Vinod- Dr. Ram Manohar Lohiya National Law University. Article titled “Effects of Injunctions granted on Insufficient rounds” on 2019-20. Last accessed on 27 Sep 2020.
- Puneet Garg, India: Law of Injunction: Temporary Injunction on 13 Aug 2013. Last accessed on 27 Sep 2020.
- Devaang Savla, Principles of Civil Procedure: Governance of Interim Remedies (Injunctions) on 8 Dec 2019. Last accessed on 27 Sep 2020.
C. K. Takwani, Civil Procedure with Limitation Act, 1963. 8th Edn, 2017. Reprinted 2020.
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