APPLICATION UNDER ORDER 39 RULES 1 AND 2 READ WITH SECTION 151 CPC FOR GRANT OF AD-INTERIM EX-PARTE INJUNCTION
IN
THE COURT OF
Suit
No..................... of 200
In the Matter of:
AB..............................................................
Plaintiff
versus
CD..............................................................
Defendants
APPLICATION UNDER ORDER 39 RULES
1 AND 2 READ WITH SECTION 151 CPC ON BEHALF OF THE PLAINTIFF FOR GRANT OF
AD-INTERIM EX-PARTE INJUNCTION
Respectfully Showeth:
1.
That the plaintiff has filed the accompanying
suit for permanent injunction against the defendants which is pending disposal
before this Hon’ble Court.,
2.
That the plaintiff craves leave of this Hon’ble
Court and prays that the contents of the accompanying plaint/suit may kindly be
read as part and parcel of this application as those are not being repeated
herein for the sake of brevity.
3.
That the defendants particularly Nos. 1 and 2
are influential people who believe in taking the law in their own hands and
also believe on using muscle powers.
4.
That the defendants Nos. 2 and 3 are bent upon
grabbing the room and kitchen built by plaintiff with his own hard earned money
and are threatening to forcibly evict the plaintiff and his family through
collusion with goondas and of official machinery functioning.
5.
That in case the defendants succeed in achieving
their illegal designs of forcibly evicting the plaintiff then the plaintiff
will suffer an irreparable loss and injury which cannot be compensated in terms
of money.
6.
That the plaintiff has a good prima facie case in his favour and
against the defendant and is likely to succeed therein.
7.
That the balance of convenience also lies in
favour of the plaintiff and against the defendant.
It is therefore respectfully prayed
that during the pendency of the accompanying suit the defendants Nos. 1 to 3,
their agents, servants, relatives etc. may kindly be restrained from selling,
parting with, alienating, creating third party interest, interferring with the
peaceful possession, occupation, enjoyment and use of the demised premises in
and adjacent to House
No..................... by
passing an ad-interim injunction in favour of the plaintiff.
Plaintiff
Through
Advocate
Place:....................
Dated:....................
AFFIDAVIT IN SUPPORT OF APPLICATION
IN THE COURT
OF....................
Suit No..................... of
200
In the Matter of: -
AB....................................................................
Plaintiff
versus
CD..............................................................
Defendants
AFFIDAVIT
[CD2]
I,........................................................................................................................
.................... do
hereby solemnly affirm and
declare as under: -
1.
That I am the plaintiff in the above noted case
and am well versed with the facts of the case, and as such, am competent to
depose to the same.
2.
That the accompanying application under Order 39
Rules 1 & 2 read with section 151 CPC has been drafted under my
instructions. The contents stated therein are true and correct to my knowledge,
and the same may be read as part and parcel of this affidavit.
Deponent
VERIFICATION
[CD3]
Verified at....................
on this.................... day of.................... that the contents of the
above affidavit are true and correct to my knowledge, no part of it is false
and nothing material has been concealed therefrom.
Deponent.
case law
WHEN RELIEF TO BE GRANTED.
The relief should be awarded only
in clear cases, reasonably free from doubt, and, when necessary, to prevent
great and irreparable injury1.
BURDEN OF PROOF
Burden of proof rests upon the
complainant to establish the material allegations entitling him to relief2.
POWER TO BE EXERCISED WITH EXTREME CAUTION.
To be applied in very clear cases
— Guidelines for exercise of discretionary powers3.
CIRCUMSTANCES NOT COVERED BY ORDER 39 CPC — INHERENT JURISDICTION.
There being no such expression in
Section 94 which expressly prohibits the issue of a temporary injunction in
circumstances not covered by Order 39 or by any rules made under the Code, the
Courts have inherent jurisdiction to issue temporary injunction in
circumstances which are not covered by the provisions of Order 39, if the Court
is of opinion that the interests of justice require the issue of such interim
injunction4.
INJUNCTION WHEN ONLY AN INTERIM ORDER.
The matter ought to have been
concluded by a final hearing as to whether temporary injunction will continue,
if so on what terms until the disposal of the suit5.
OBSERVATIONS MADE IN INTERLOCUTORY PROCEEDINGS — FINAL ORDER.
The trial court in deciding the
suit itself will not allow its mind to be affected in any manner by the
observations which are made in the interlocutory proceedings. It should be
clearly understood that at the final stage the suit is to be decided on the
evidence which is led by the parties and any observations made during the
proceedings in respect of the prayer for a temporary injunction whether made in
the Courts below or by the High Court have no relevance whatsoever in passing
the final verdict after the trial of the suit6.
REJOINDER TO THE REPLY BY THE DEFENDANT AGAINST TEMPORARY INJUNCTION.
The contingency of filing a
rejoinder does not arise in every case, because it would arise only in such
cases where some new plea or fact is introduced by the defendant in reply7.
INTERLOCUTORY ORDER IN THE COURSE OF A PROCEEDING WHEN WILL LAPSE.
With the final decision of the
suit itself, unless of course the suit is one for permanent injunction and the
interim injunction is made permanent as part of the decreed order by the
Court8.
FINDING ARRIVED AT IN DEALING WITH TEMPORARY INJUNCTION.
The findings arrived at in
dealing with applications for temporary injunction pending disposal of the
suit, even if they relate to any material question involved in the suit cannot
take the place of findings in the final decision of the suit9.
PRINCIPLES THAT GOVERN GRANT OR REFUSAL OF AN INTERIM INJUNCTION.
They depend upon a variety of
circumstances. It is impossible to lay down, any rigid general rule on the
subject by which the discretion of the Court ought in all cases be regulated.
It is true, that at the
interlocutory stage, the court should not embark upon a detailed investigation
on the relative merits of the contentions of the parties and it is enough if
the plaintiff raises questions of a substantial character calling for decision
after an examination of the facts and the law arising in the case.
The court should avoid expressing
any opinion on the merits which would partake the character of a decision of
the main issues in the case10.
JURISDICTION OF THE COURT TO ENTERTAIN THE SUIT.
It is incumbent upon the Court to
determine that question as preliminary issue before making the order of
injunction absolute11.
REJECTION OF PLAINT — TEMPORARY INJUNCTION ISSUED BY
TRIAL COURT DOES NOT AUTOMATICALLY STAND REVIVED.
Orders granting temporary
injunction do not aid and supplement the ultimate decision of the suits12.
CAUTION TO BE EXERCISED
(a)
Fair prima
facie case;
(b)
Actual or threatened violation of the right;
(c)
Productive or irreparable or atleast serious
injury.
(d)
Conduct;
(e) Acquiescence
or delay; (f) Greater convenience and
(g) No efficacious relief.
THE PHRASES "PRIMA FACIE CASE",
"BALANCE OF CONVENIENCE" AND "IRREPARABLE LOSS".
Are not rhetoric phrases for
incantation, but words of width and elasticity, to meet myriad situations,
presented by mans ingenuity in given facts and circumstances, but always is
hedged with sound exercise of judicial discretion to meet the ends of justice.
It is very neigh impossible to find from facts prima facie case and balance of convenience. The respondent can be
adequately compensated on their success13.
INGREDIENT TO BE ESTABLISHED TO OBTAIN AN INTERLOCUTORY INJUNCTION.
(i)
In the event of withholding the relief of
temporary injunction he will suffer an irreparable injury;
(ii)
In the event of his success in the suit in
establishing his alleged legal right encroachment whereof is "complained
against, he will not have the proper remedy in being awarded adequate damages.
(iii)
The plaintiff must show a clear necessity for
affording immediate protection to his legal right, if any and
(iv)
Lastly the Court has to take into consideration
the comparative mischief or inconvenience to the parties14.
TEMPORARY INJUNCTION UNDER SECTION 151 HAVING SAME IMPORT AS THAT OF
THE ORDER PASSED UNDER ORDER 39 RULES 1 AND 2.
The appeal before the appellate
court against such interim order was maintainable15.
APPELLATE COURT HAS ALL THE POWERS WHICH ARE VESTED IN THE TRIAL COURT.
But when the Court is considering
the legality of the order of grant or refusal of temporary injunction in writ
jurisdiction unless there is a fundamental wrong committed by the court below,
it is not possible for the High Court to interfere with the orders of the court
below which do not suffer from any error of law or infirmity.
EX PARTE AD INTERIM
INJUNCTION — COURT DECLINING TO PASS ORDER — ORDER NOT APPEALABLE.
Where court is not satisfied that
it should consider an application for temporary injunction under Order 39 Rules
1 and 2 before notice to the Opposite party, it does not pass an order under
these provisions, rather postpones the consideration of such application to a
later date after notice to the opposite party and against such order no appeal
lies16.
JURISDICTION OF APPELLATE COURT — INJUNCTION PETITION CANNOT BE DECIDED
ON MERITS.
The powers is only to grant
interim relief either in the nature of granting ad interim injunction or modify
such an order for the purpose of preventing a possible injury or to preserve
the subject matter of the suit for the time being. To enable the appellate
court to consider the petition for injunction on merits for the first time will
be virtually conferring jurisdiction on the appellate court which it otherwise
does not have17.
CONCURRENT FINDING ON THE QUESTION OF BALANCE OF CONVENIENCE.
Courts having arrived at such
conclusion did not commit any error of law or approach in that conclusion. No
interference under revisional jurisdiction18.
GRANT OR REFUSAL OF TEMPORARY INJUNCTION RESTS ON SOUND EXERCISE OF
DISCRETION.
It cannot be lightly interfered
with unless it is shown that such exercise of discretion is unreasonable or
capricious19.
COURT TO SCRUTINISE WHETHER THE APPLICATION FOR INJUNCTION IS UNDER
ORDER 39 OR SECTION 151 OF THE CODE.
Where the court proceeded to
discuss the requirements of prima facie case,
balance of convenience and irreparable injury, inference will be justified that
the Court acted under order 39 rather than under section 151 CPC. On the other
hand, if the court observed that no injunction was justified under order 39
rules 1 and 2 but for the ends of justice, under the circumstances of the case,
an order was passed then it would be reasonable to hold that the impugned order
was passed under section 151 of the Code. This may be taken only as a guideline
and not as a cut and dried formula20.
CONSIDERATIONS WHETHER AN INJUNCTION SHOULD OR SHOULD NOT ISSUE THREE
REQUIREMENTS.
Whether an order of injunction
should not issue on the facts of the case, the Court must also consider apart
from prima facie case, the question
of irreparable or serious injury and balance of convenience.
(a) Prima facie case21.
(b)
Balance of convenience22.
(c)
Irreparable loss and injury23
Order 39 Rules 1 & 2
BANK GUARANTEE — CONTRACT NOT VITIATED BY ANY FRAUD — NO IRRETRIEVABLE
INJURY — INJUNCTION NOT TO BE GRANTED.
In law relating to bank
guarantees, a party seeking injunction from encashing of bank guarantee by the
suppliers has to show prima facie case
of established fraud and an irretrievable injury. Irretrievable injury is of
the nature as noticed in the case of Itek
Corporation (566 Federal Supplement 1210), that is plaintiff has no adequate
remedy in law and the allegations of irreparable harm are not speculative but
genuine and immediate, the plaintiff will suffer irreparable harm if the
requested relief is not granted.
Here there is no such problem.
Once the plaintiff is able to establish fraud against the suppliers or
suppliers-cum-lenders and obtains any decree for damages or diminution in
price, there is no problem for affecting recoveries in a friendly country where
the bankers and the suppliers are located. Nothing has been pointed out to show
that the decree passed by the Indian Courts could not be executable in
Sweden24.
PHRASES "PRIMA FACIE CASE",
"BALANCE OF CONVENIENCE" AND "IRREPARABLE LOSS".
The phrases "Prima Facie Case" "balance of convenience" and
"irreparable loss" are not rhetoric phrases for incantation but words
of width and elasticity, to meet myriad situations presented by man’s ingenuity
in given facts and circumstances, but always is hedged with sound exercise of
judicial discretion to meet the ends of justice25.
Order
39 Rule 24.
WHETHER AGENT OF DEFENDANT CAN BE PROCEEDED AGAINST?— (YES).
The expression "person"
occurring in sub-rule (1) of the old provision of Rule 2, corresponding to Rule
2A of the Amended Code has been employed merely compendiously to designate
every one in a group, defendant, his agent, servants and workmen and not for
excluding any defendant against whom the order of injunction has primarily been
pressed26.
Order 39 Rules 1 and 2
The injunction restraining
transfer for property during pendency of the suit can be granted27.
It is now a settled position in
law that an appeal lies against the order granting as well as refusing an
injunction. There was a difference of opinion on this issue but now by catena
of case law the position is settled that an appeal would lie not only against
an order granting injunction but also against an order refusing the same as
even that order could be described as an order passed under Order XXXIX, Rule 1
or 2 as the case may be.
Where an application for ex-parte injunction is made and the
court refused to grant such an injunction and instead issues notice of the
application to the opposite party. The order of refusal would be an order under
Rule 1 or Rule 2 as the case may be and not under Rule 3 and hence it would be
appealable under Order XLIII Rule l(r)28.
BREACH OF INJUNCTION ORDER
Order 39, Rule 2(A)(1)
Where no order of injunction was
passed against persons not impleaded in the suit they cannot be held guilty for
breach of any order pased in such proceedings.29
ORDER IN CONTEMPT APPLICATION PASSED BY TRIAL COURT CANNOT BE KEPT IN
ABEYANCE BY HIGH COURT WITHOUT DECIDING APPEAL ON MERITS.
Order 39, Rule 2A
Order passed by trial Court in
contempt application under Order 39 Rule 2A CPC cannot be kept in abeyance by
High Court in appeal without deciding appeal on merits.30
EX-PARTE INTERIM INJUNCTION
Order 39 Rule 3
If a Court which passed the order
granting interim ex-parte injunction
did not record reasons thereof or did not require the applicant to perform the
duties enumerated in clauses (a) and (b) of Rule 3 of Order 39, such an order
can be deemed to contain such requirements at least by implication even if they
are not stated in so many words.31
EX-PARTE INTERIM INJUNCTION
Order 39 Rule 3-A
Rule 3-A does not say that the
period of the injunction order should be restricted by the Court to thirty days
at the first instance, but the Court should pass final order on it within
thirty days from the day on which the injunction was granted. Hence, the order
does not ipso facto become illegal
merely because it was not restricted to a period of thirty days or less.32
1.
A. I. R. 1965 Mys. 310.
2.
A. I. R. 1965 Mys. 310.
3.
A. I. R. 1965 Mys. 310.
4.
A. I. R. 1985 MP 252.
5.
A. I. R. 1968 Patna. 47.
6.
A. I. R. 1977 All. 145.
7.
A. I. R. 1987 Raj. 19.
8.
A. I. R. 1987 Mad. 173.
9.
(1955) 59 C. W. N. 692: A. l. R. 1988 Cal. 25.
10.
A. l. R. 1969 Mad. 42.
11.
A. l. R. 1974 Bom. 288.
12.
A. I. R. 1991 Raj. 94.
13.
A. I. R. 1993 S. C. 276.
14.
A. I. R. 1993 All. 117: A. I. R. 1992 Raj. 29.
15.
A. I. R. 1992 All. 215.
16.
A. I. R. 1993 Orissa78.
17.
A. I. R. 1993 Kerala 33.
18.
A. I. R. 1974 Patna 376.
19.
A. I. R. 1977 Orissa 58.
20.
A. I. R. 1987 Gau. 16.
21.
A. I. R. 1992 MP 286.
22.
A. I. R. 1992 All. 254.
23.
A. I. R. 1992 P&H 86.
24.
Svenska Handelsbanken v. M/s. Indian Charge
Chrome, A. I. R. 1994 S. C. 626.
25.
Daipat Kumar v. Prahlad Singh A. I. R. 1993 S.
C. 276: 1992 (1) S. C. C. 719: 1991 (6) J. T. 502: 1992 (1) C. C. C. 73: 1991
(2) Scale 1431: 1992 (1) U. J. 501.
26.
Ram Prasad Singh v. Subodh Prasad Singh, A. l.
R. 1983 Pat. 278.
27.
Smt Sunita Jain v. Chander Kanta, 1996(2) C. C.
C. 368 (P&H).
28.
Tilak Singh v. Pyaroo Khan, 1996 (3) C. C. I.
141 (Bom. ).
29.
Mohiddin Basha Abdul Razak v. Municipal
Corporation of Gr. Bombay, AIR 2001 Bom. 18
30.
G. Kamala Rao v. K. Jawahar Reddy, 2001 (2) CCC
220 (SC).
31.
A Venkatasubbiah Naidu v. S. Chellappan, AIR
2000 SC 3032.
32.
A. Venkatasubbiah Naidu v. S. Chellappan, AIR
2000 SC 3032.
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