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TEMPORARY INJUNCTIONS

Supreme Court of India

Martin Burn Ltd vs R.N Banerjee on 20 September, 1957



prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record.






(The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."


At this juncture, however, the decision of the House of Lords in American Cyanamid's case though raised certain eye-brows lately, ought to be considered in slightly more greater detail. Lord Diplock in Cyanamid's case laid down the following guiding principles for the grant of interlocutory injunction: (1) "The plaintiff must first satisfy the Court that there is a serious issue to decide and that if the defendants were not restrained and the plaintiff won the action, damages at common law would be inadequate compensation for the plaintiff's loss.


(2) The Court, once satisfied of these matters will then consider whether the balance of convenience lies in favour of granting injunction or not, that is, whether justice would be best served by an order of injunction.


(3) The Court does not and cannot judge the merits of the parties `s respective cases and that any decision of justice will be taken in a state of uncertainty about the parties' rights."

It would seem to follow therefore, that what should be borne in mind, in addition to what has been phrased in Lord Diplock's speech, is that if there is uncertainty, the Court should be doubly reluctant to issue an injunction, the effect of which is to settle the parties' rights once for all. On a clear analysis of the speech of Lord Diplock, it appears that if damages, recoverable at common law, would be an adequate remedy and the defendant would be in a financial position to pay the same, no interlocutory injunction should normally be granted, howsoever strong the plaintiff's claim appear to be at that stage. Lord Diplock went on to observe further that in the event of there being any doubt, as to the adequacy of the respective remedies and damages available to either party or both, then and in that event, the question of balance of convenience arises and the same will vary from case to case. Similar view has also been expressed by the House of Lords in the case of Dimbleby & Sons Ltd Vs. National Union of journalists.

While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case;


(ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection, has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience" lies. (see: Wander Ltd. Vs. Antox India (P) Ltd, (1990 (supp) SCC at pp.731-32.) In order to protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial".)


Supreme Court of India

Colgate Palmolive (India) Ltd vs Hindustan Lever Ltd on 18 August, 1999


We, however, think it fit to note herein below certain specific considerations in the matter of grant of interlocutory injunction, the basic being-non-expression of opinion as to the merits of the matter by the Court, since the issue of grant of injunction usually, is at the earliest possible stage so far as the time frame is concerned. The other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below:- (i) Extent of damages being an adequate remedy;


(ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor; (iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others; (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case - the relief being kept flexible;


(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) Whether the grant or refusal of injunction will adversly affect the interest of general public which can or cannot be compensated otherwise.


Supreme Court of India

M/S Gujarat Bottling Co.Ltd. & Ors vs The Coca Cola Co. & Ors on 4 August, 1995

UNder order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injuction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdictionb of the court has to show that he himselff was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the partyh against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injuction under order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad-interim or temporary injuction order already granted in the pending suit or proceedings.


Analysing the conduct of the GBC in the light of the above principles, it will be seen that GBC, who was a party to the 1993 Agreement, has not acted in conformity with the terns set out in the said agreement. It was itself, Prima facie, resposible for the breach of the agreement, as would be evidenmt from the facts set out earlier. neither the consent of Coca Cola was obtained for transfer of shares of GBC not Coca Cola informed of the names of persons to whom the shares were proposed to be transferred. coca Cola, therefore, had the right to terminate the agreement but it did not do so. On the contrary, GBC itself issued the notice for terminating the agreements by giving three months notice It is contended by Shri nariman And, in our opinion, rightly, that the GBC, having itself acted in violation of the terms of agreement and ahaving breached the contract, cannot legally claim that the order or injuction be vocated particularly as th GBC itself is primarily reponsible for having brought about the state of things complained of by it. Since GBC has acted in an unfair and inequitable m,anner in its dealings with Coca Cola, there was hardly and any occasion to vacant the injuction order and the order passed by the Bombay High Court cannot be interferred with not even on the ground of closure of factory, as the party responsible, prima facie, for breach of contract cannot be permitted to raise this grievance.


Supreme Court of India

Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal on 16 November, 1961

"We are of opinion that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of O.XXXIX, Code of Civil Procedure. There is no such expression in s. 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by O. XXXIX or by any rules made under the Code. It is well-settled that the provisions of the Code are not exhaustive for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'if it is so prescribed' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. if the provisions of s. 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. it is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of s. 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent powers."


Rajendraprasad R. Singh vs The Municipal Corpn. Of Gr. Bombay ... on 24 January, 2003


7. Rule 1 or Rule 2 of Order 39 are repository of the power to grant injunction. An order of injunction is always passed under Rule 1 or Rule 2 Order 39 save and except rare orders passed under Section 151 of the Code of Civil Procedure. Rule 1 and Rule 2 of Order 39 do not use the words "interim or ad interim". These are the words coined by the lawyers and the courts merely to indicate the stage at which orders are passed. Interim order usually remains in force for whole of the period of the suit unless varied under Rule 4 or set aside in appeal. Ad interim order operates only till the hearing of the application for injunction. Usually, ad interim order is passed ex parte though it can also be passed when otherwise is present. It is possible that in a given case at the time of institution of a suit, the plaintiff does not make an application for an order of interim injunction as he feels no necessity in which case only summons of the suit is issued to the defendant. During the pendency of the suit, a contingency may arise requiring the plaintiff to apply for an injunction. When such an application is made and when the defendant is present and seeks time to file reply, the court may pass ad interim order of injunction pending reply of the defendant. In some cases, even after the reply is filed by the defendants the court may grant ad interim order of injunction if it does not have time to hear the matter and feels that it is necessary to grant injunction pending hearing to protect the plaintiff pending hearing of the application. Thus, ad interim order of injunction may be ex parte or may be passed even in the presence of the defendants. There is no qualitative difference between an interim and ad interim order except about the period for which they operate and the stage at which they are passed. If so the order refusing an ad interim injunction is as much appealable as an order refusing an interim injunction.


8. Rule 3 of Order 39 mandates issuance of a notice by the court to the opposite party before passing of an injunction to prevent injustice that may be caused to the opposite side by gnat of an order of injunction without giving it an opportunity of being heard. However, the refusal to grant an exparte order or postponing of the grant until the notice is served on the opposite side itself can cause an injustice to the plaintiff in some cases. For example where the plaintiff alleges that the defendant is likely to dispossess him on the very day and the Court is prima facie satisfied about the truth of the allegation and about the plaintiff's right to insist upon a notice to be served on the opposite side before grant of any order may defeat, the very purpose of the suit. In order to prevent such a situation, proviso to Rule 3 of Order 39 empowers the court to grant an injunction ex parte injunction before giving a notice to the other side if the court is satisfied that the object of granting of an injunction would be defeated by delay and the court records reasons for such an opinion. A further safeguard is introduced requiring the person claiming ex parte injunction to send to the opposite party by registered post immediately after the order of injunction, a copy of the injunction application together with the affidavit in support of the injunction application, copy of the plaint and copies of documents on which he relies. These are procedural safeguards. Rule 3 only prescribes the procedure for grant of an injunction and is not the repository of the power to grant injunction. Rule 3 would be superfluous and would not exist without Rules 1 and 2 of Order 39. The order, be it of a grant or of postponing the grant untill service of notice is essentially passed in exercise of the powers under Rule 1 or 2 of Order 39.



Supreme Court of India

Dalpat Kumar And Anr. vs Prahlad Singh And Ors. on 16 December, 1991

Order 39, Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause(c) was brought on statute by Section 88(i)(c) of the Amending Act 104 of 1966 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under Section 151, C.P.C. to grant ad interim injunction against dispossession. Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court in exercise of the power of granting ad interim injunction is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.


5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with incovenience that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.


6. Undoubtedly, in a suit seeking to set aside the decree, the subject-matter in the earlier suit, though became final, the Court would in an appropriate case grant ad interim injunction when the party seeks to set aside the decree on the ground of fraud pleaded in the suit or for want of jurisdiction in the Court which passed the decree. But the Court would be circumspect before granting the injunction and look to the conduct of the party, the probable injuries to either party and whether the plaintiff could be adequately compensated if injunction is refused.

DIFFERENCE BETWEEN STAY AN INJUNCTION Stay Order

An order of stay indicates stoppage, arrest or suspension of judicial proceedings. Among various other uses, an order of stay is primarily passed against execution (putting the decree into practice) of a decree (an adjudication determining the rights of the parties). A stay is made against execution of a decree to enable the judgment-debtor (the one against the interests of whom the decree has been passed) to appeal to an appellate court against such a decree (Order 21, Rule 26; Order 41, Rule 5 the CPC, 1908). Such an order prohibits commencement of any proceeding for execution of the said decree.


An order of stay of proceedings may also be made against a sale (Order 21, Rule 59), in a suit against a corporation (Order 30), in a suit involving a minor (Order 32), interpleader suits (Order 35), summary suits (Order 37), in case of reference to a High Court (Order 46). An order of stay of proceedings is available to the Civil Courts by virtue of their inherent power under Section 151 (?) as well as to the Supreme Court and the High Courts.


Injunction Order

An injunction is an order of the court compelling a person to do or not to carry out a particular action. They are of various types:


Temporary (Order 39 of the Code of Civil Procedure, 1908) and Permanent (Section 38-42 of the Specific Relief Act, 1963): The former is granted during the pendency of the suit based on various factors (preservation of status quo, balance of convenience, a prima facie case, irreparable injury, etc.) while the latter permanently prohibits or mandates a person to do certain actions.

Preventive (ones that restrain actions) and mandatory (ones that compel actions).

Ad-interim (ones granted during pendency of application and operative till its disposal) and interim (ones that are granted at disposal of application and operative till disposal of the suit).

Difference

As has become clear from the above, an injunction is applicable against a person while an order of stay operates against a court. An injunction operates as soon as it is issued but a stay order operates only when it is communicated to the court to which it is issued (Mulraj v. Murti Raghonathji Maharaj, 1967). Proceedings taken in contravention of a stay order are void ab initio while those against an injunction are not null and void but subject to punishment


Supreme Court of India

M/S Best Sellers Retail(I)P.Ltd vs M/S Aditya Birla Nuvo Ltd.& Ors on 8 May, 2012


In fact, the application for temporary injunction of respondent no.1 before the trial court is under the provisions of Order 39 Rules 1 and 2 read with Section 151 of the CPC. It has been held by this Court in Kishoresinh Ratansinh Jadeja v. Maruti Corporation & Ors. (supra) that it is well established that while passing an interim order of injunction under Order 39 Rules 1 and 2 CPC, the Court is required to consider (i) whether there is a prima facie case in favour of the plaintiff; (ii) whether the balance of convenience is in favour of passing the order of injunction; and (iii) whether the plaintiff will suffer irreparable injury if an order of injunction would not be passed as prayed for. Hence, we only have to consider whether these well-settled principles relating to grant of temporary injunction have been kept in mind by the trial court and the High Court.



Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. [(1992) 1 SCC 719] this Court held:


“Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages.”


EX PARTE INJUNCTION:

Supreme Court of India

Morgan Stanley Mutual Fund vs Kartick Das on 20 May, 1994

Q. 4: What are the guiding principles in relation to the grant of an ad interim injunction in such areas of the functioning of the capital market and public issues of the corporate sector and whether certain 'venue restriction clauses' would require to be evolved.judicially as has been done in cases such as Sanchaita case I etc. ?


36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are-


(a) whether irreparable or serious mischief will ensue to the plaintiff;


(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;


(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;


(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;


(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.


(f) even if granted, the ex parte injunction would be for a limited period of time.


(g) General principles like prima facie case balance of convenience and irreparable loss would also be considered by the court.


In United Commercial Bank v. Batik of India, ApesxCourt observed:"No injunction could be granted under Order 39, Rules 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether in the facts and circumstances of the case, there is a prima facie case and, if so, as between whom? In view of the legal principles applicable, it is difficult for us to say on tile material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the Bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by the plaintiffs. Shiv Kumar Chadha v. Municipal Corpn. of Delhi, it is stated as under:"... the court shall 'record the reasons' why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule '1 r/w rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the Jurisdiction of the court for grant of an order of restrain against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and no t obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all.

As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed."


Temporary mandatory injunctions :


Dorab Cawasji Warden vs. Coomi Sorab Warden 1990 (2) SCC 117 wherein this Court held :-


"The Relief of interlocutory mandatory injunctions are granted generally to preserve or restore the status- quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm".(requires strict proof)

"The relief of interlocutory mandatory injunction are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are :

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.


Supreme Court of India

Mohd Mehtab Khan & Ors vs Khushnuma Ibrahim Khan & Ors on 24 January, 2013

here is yet another dimension to the issues arising in the present appeal. The interim relief granted to the plaintiffs by the Appellate Bench of the High Court in the present case is a mandatory direction to handover possession to the plaintiffs. Grant of mandatory interim relief requires the highest degree of satisfaction of the Court; much higher than a case involving grant of prohibitory injunction. It is, indeed, a rare power, the governing principles whereof would hardly require a reiteration inasmuch as the same which had been evolved by this Court in Dorab Cawasji Warden vs. Coomi Sorab Warden and Others[2] has come to be firmly embedded in our jurisprudence. Paras 16 and 17 of the judgment in Dorab Cawasji Warden (supra), extracted below, may be usefully remembered in this regard:


“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.”



Order 39 Rule 3 of the CPC imposes a duty on the court before granting an injunction to issue notice to other party except in a case it appears to the trial court that the object of granting injunction would be defeated by delay and in that situation where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting injunction would be defeated by delay and would require to comply the application requisites as provided in sub-clauses (a) and (b) of Rule 3 of Order 39 of the CPC, but where an injunction has been granted without giving notice to the opposite party, the Court shall make attempt to decide the application for temporary injunction within thirty days from the date of granting injunction and in case the court is unable to decide within said period, it shall record its reason for not doing so. The legislative mandate of such a direction is contained in Order 39 Rule 3-A of CPC which states as under:-


"3. Before granting injunction, Court to direct notice to opposite party.-The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the W.P.(Art.227)No.492/2015 reasons for its opinion that the object of granting injunction would be defeated by delay, and require the applicant-

(a)to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) ...... ...... ........"

24. Way back, in the matter of Shiv Kumar Chadha v. Municipal Courporation of Delhi and others , the Supreme Court has cautioned the courts stating that the power to grant injunction is an extra ordinary power vessted in courts have to be more cautious when the said power is being exercised without notice or hearing to the party who is affected by the order so passed and held as under:-

"32. Power to grant injunction is an extraordinary power vested in the court to be exercised taking into consideration the facts and circumstances of a particular case. The courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite- party, except where it appears that object of granting injunction itself would be defeated by delay.

By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule 9 saying that "where it is proposed to grant an injunction without giving notice of the application to the opposite-party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay...".

33. It has come to our notice that in spite of the aforesaid statutory requirement, the courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant."



In the matter of A. Venkatasubbiah Naidu v. S. Chellappan and others, Their Lordships of the Supreme Court while considering the provisions contained in Order 39 Rule 3 of the CPC and held as under:-


"15. What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof did not require the applicant to perform the duties enumerated in clauses (a) and (b) of Rule 3 of Order 39. In our view such an order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party."

28. In the aforesaid judgment, Their lordships have also considered the consequence of non-compliance of Order 39 Rule 3-A of CPC and held as under:-


"19. The aforesaid Rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. Second is, the legal obligation that if for any valid reasons the court could not finally dispose of the application within the aforesaid time the court has to record the reasons thereof in writing.

20. What would happen if a court does not do either of the courses? We have to bear in mind that in such a case the court would have bypassed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the court is empowered to bypass the said protective measure. Second is the statutory obligation cast on the court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the court can bypass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer.

21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party which does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3-A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule."