Temporary Injunctions and Interlocutory Orders (Order XXXIX)

Order XXXIX of the Code of Civil Procedure, 1908 contains the procedural template for the most-litigated supplemental remedy in civil practice — the temporary injunction. The substantive law of injunctions lives in Sections 36 to 42 of the Specific Relief Act, 1963; Order XXXIX governs the procedure by which the court grants, refuses, varies or discharges an interim order during the pendency of a suit. The discretion is wide. The discipline imposed on its exercise — by Rules 1, 2, 3, 3A, 4 and 2A and by the body of decisional law that has grown around them — is what distinguishes a sound exercise of judicial discretion from a rubber-stamp.

An injunction is a judicial remedy either prohibiting the doing of an act or commanding its undoing. Where it is granted permanently by the final decree, it is governed by the Specific Relief Act and is properly called a perpetual injunction. Where it is granted for the duration of the suit only, it is governed by Order XXXIX and is called temporary, interim or interlocutory. The word “temporary” is in this context a term of art: the order endures only until the suit is disposed of or until the court’s further order, and the court that passes a decree has no power to grant a fresh temporary injunction once the decree is signed.

Statutory anchor and scheme

Order XXXIX runs to ten rules. Rule 1 lists the three classes of cases in which a temporary injunction may be granted. Rule 2 supplies a parallel head of jurisdiction — restraint of breach of contract or other injury of any kind. Rule 2A prescribes the consequences of disobedience or breach of an injunction. Rule 3 governs notice to the opposite party and the conditions for an ex parte order. Rule 3A, inserted in 1976, requires the application to be disposed of within thirty days where an ex parte injunction has been granted. Rule 4 governs discharge, variation and setting aside. Rule 5 makes an injunction directed to a corporation binding on its officers. Rules 6 to 10 supply a small set of related interlocutory powers — interim sale of perishable property, detention or preservation of subject-matter, possession on payment of revenue or rent, and deposit of money or property held by a trustee.

Cases in which temporary injunction may be granted — Rule 1

Rule 1 empowers the court to grant a temporary injunction on three grounds, on proof by affidavit or otherwise. The first is where any property in dispute is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree. The second is where the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors. The third — added in 1976 — is where the defendant threatens to dispossess the plaintiff or otherwise to cause injury to the plaintiff in relation to any property in dispute.

The discretion is judicial, not arbitrary. The Supreme Court has restated the controlling standard in Gujarat Bottling Co. Ltd v. Coca Cola Co., (1995) 5 SCC 545: the court must apply three tests — whether the plaintiff has a prima facie case; whether the balance of convenience lies in favour of the plaintiff; and whether the plaintiff would suffer an irreparable injury if the relief is refused. The three tests are cumulative. A plaintiff who establishes only a prima facie case but fails on the balance of convenience or irreparable injury is not entitled to the relief.

The three-fold test — prima facie case, balance of convenience, irreparable injury

A prima facie case implies the probability of the plaintiff obtaining relief on the material placed before the court. The plaintiff is not required to prove his case to the hilt; if a fair question arises for determination, that suffices. Balance of convenience is the evenly-balancing of scales: the plaintiff must show that the inconvenience he would suffer from refusal of the order exceeds that the defendant would suffer from its grant, and that there is a clear necessity for protection of the alleged right. Irreparable injury means injury that cannot adequately be remedied or compensated by damages — substantial injury for which there is no standard of measurement. It does not mean physical impossibility of repair; it means that an award of damages would not be an adequate substitute.

The three tests are not formulae mechanically applied. They are, in the language of the Supreme Court, “words of width and elasticity to meet myriad situations,” to be hedged with sound judicial discretion. The court is not, at the interlocutory stage, required to go into the merits of the case in detail; it is required to take a pragmatic view of the pleadings and documents and to grant or refuse relief on the three tests. The object is to preserve the status quo until the question can finally be resolved, mitigating the risk of injustice during the period of uncertainty.

Restraint of breach of contract or other injury — Rule 2

Rule 2 is the parallel head of jurisdiction for a suit to restrain a defendant from committing a breach of contract or other injury of any kind. The phrase “of any kind,” inserted in 1908, is wide enough to cover acts of trespass on property. The court may grant the injunction on such terms as to duration, keeping an account, giving security, or otherwise as it thinks fit. Rule 2 must be read with Sections 38 to 42 of the Specific Relief Act, 1963: a temporary injunction will not be granted where the case is not one in which a perpetual injunction could ultimately be granted at trial. The converse is not always true: a case in which a perpetual injunction might be granted at trial does not by itself justify a temporary injunction; there must be the further ingredient of irreparable injury or inconvenience if the defendant is not restrained at once.

The State amendments in Madhya Pradesh and Uttar Pradesh restrict the power further. Provisos inserted in those States forbid the grant of a temporary injunction where no perpetual injunction could be granted under Sections 38 and 41 of the Specific Relief Act, or to stay an order of transfer, suspension, dismissal or termination of a public servant, or to restrain an election, or to stay recovery of dues recoverable as land revenue without adequate security. Orders granted in contravention of those provisos are declared void.

Ex parte injunctions — Rule 3

Rule 3 is the central procedural safeguard. The court shall, in all cases except where it appears that the object of granting the injunction would be defeated by delay, direct notice of the application to be given to the opposite party before granting the injunction. The proviso, inserted in 1976, requires that where an injunction is proposed to be granted without notice, the court shall record the reasons for its opinion that the object would be defeated by delay; and the applicant must, immediately, deliver to the opposite party a copy of the application, the affidavit, the plaint and the documents relied upon, and file an affidavit on the same or the next day stating that he has done so.

The requirement of recording reasons is mandatory — the proviso attracts the principle that where a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all. An ex parte order is not, however, automatically void merely because the reasons recorded are brief; it is sufficient if some kind of reason relatable to the purpose of the rule is disclosed in the order. Where the applicant fails to comply with the post-grant duties under clauses (a) and (b) of the proviso, he takes the risk that the court will vacate the ex parte order without expressing any opinion on the merits.

Rule 3A, also inserted in 1976, supplies the time discipline. Where an injunction has been granted without notice, the court shall make an endeavour to dispose of the application finally within thirty days, and shall record reasons in writing if it is unable so to do. Where the court neither disposes of the application within thirty days nor records reasons, the ex parte order does not stand confirmed by efflux of time; the aggrieved party has a right of appeal under Order XLIII Rule 1(r) against the order, notwithstanding the pendency of the application for grant or vacation.

Discharge, variation, setting aside — Rule 4

Rule 4 confers on the court a power to discharge, vary or set aside an injunction on the application of any party dissatisfied with the order. Two provisos qualify the power. Where, in an ex parte injunction, a party has knowingly made a false or misleading statement in relation to a material particular, the court shall vacate the injunction unless, for reasons to be recorded, it considers that vacation is not necessary in the interests of justice. And where the order has been passed after giving the party an opportunity of being heard, it shall not be discharged on that party’s application except where there has been a change in circumstances or where the order has caused undue hardship.

Rule 4 is the proper avenue against an ex parte injunction; Order IX Rule 13 does not apply, since an interlocutory injunction is not a decree. The expression “any party dissatisfied with such order” has been read to include a party impleaded after the grant of the injunction.

Disobedience and breach — Rule 2A

Rule 2A supplies the sanction for disobedience or breach. The court that granted the injunction — or any court to which the suit has been transferred — may order the property of the person guilty of disobedience to be attached, and may also order such person to be detained in civil prison for a term not exceeding three months, unless in the meantime the court directs his release. No attachment under the rule remains in force for more than one year; if the disobedience continues at the end of the year, the property may be sold and the court may award such compensation out of the proceeds as it thinks fit.

The Supreme Court has been consistent on three points. First, only wilful disobedience attracts Rule 2A; mere disobedience without knowledge of the order is not enough. Second, attachment and civil prison are independent measures; the court is not required to order attachment first. Third, Rule 2A is not co-extensive with civil contempt under the Contempt of Courts Act, 1971; where the Code itself supplies an efficacious remedy, parallel proceedings under the Contempt of Courts Act are not maintainable. Section 151 may be invoked, in addition, to direct restoration of the status quo ante or to order police aid for enforcement of the injunction; that power is to be exercised sparingly.

An injunction does not, however, render a subsequent alienation void in the way an attachment under Section 64 does. A defendant who alienates property in disobedience of an injunction is liable to the consequences of Rule 2A — attachment, civil prison, compensation — but the alienation itself is not void in rem. This is the structural difference between an injunction and an attachment that the Code preserves.

Mandatory and ex parte mandatory injunctions

An interlocutory injunction may be either prohibitory or mandatory. A mandatory injunction, even at the interlocutory stage, may be granted to preserve or restore the status quo ante — that is, the last non-contested state preceding the controversy — or to compel the undoing of acts illegally done. The Supreme Court has insisted that an ex parte mandatory injunction be issued only in exceptional cases where failure to do so would lead to an irreversible situation. The order must, like every ex parte order under the Order, comply with Rule 3 — reasons recorded, copies delivered, an affidavit filed; and like every interlocutory order, it must be founded on the three-fold test.

Anti-suit injunctions, Mareva, Anton Pillar and arbitration

Where a court restrains a party to a proceeding before it from instituting or prosecuting a case in another court — including a foreign court — the order is called an anti-suit injunction. The Supreme Court has emphasised that the power is to be exercised sparingly because the order, though directed against a person, in effect interferes with the jurisdiction of another court. The Supreme Court has laid down a consistent set of guiding principles — the parties before the Indian court must be amenable to the court's jurisdiction; the foreign forum must, at the least, be forum non conveniens or vexatious or oppressive; and the court must weigh the principle of comity of courts against the prejudice the applicant would suffer if the foreign proceedings were allowed to continue.

Two English-law devices have functional equivalents in Indian practice. The Mareva injunction — an order restraining the defendant from removing specific assets from the jurisdiction — is achieved here by recourse to Order XXXIX read with Order XXXVIII Rules 1 and 5. The Anton Pillar order — an ex parte order to authorise inspection, photographing or custody of documents — is achieved largely by recourse to Order XI, Order XXVI on commissions, and Section 151. The High Courts of Bombay and Andhra Pradesh have held that the principles of Order XXXIX Rules 1 and 2 also govern the grant of interim measures of protection by a court under Section 9(ii)(b) of the Arbitration and Conciliation Act, 1996; the conditions of Order XXXVIII Rule 5, however, do not strictly bind such an application.

Possession, status quo and public-law restraint

A person in settled possession cannot be dispossessed without due process of law, even by the rightful owner. An injunction will lie at the suit of a person in lawful possession to restrain dispossession or interference, even where the relief sought in the substantive plaint is mere protection of possession. The corollary is that an injunction is an equitable relief, and a person in unlawful possession — a trespasser, an encroacher on public land — cannot ask the court to protect his illegal occupation. The Supreme Court has insisted that, while protection of possession is one of the most common heads under Rule 1, the court must enquire — at least at the prima facie level — into the right, title or status of the person seeking the relief.

The court should be slow in restraining the discharge of statutory functions by a public authority or in restraining elections. An interim order should not have the effect of granting at the interlocutory stage the final relief sought in the suit; nor should an interim order be open-ended. The Calcutta High Court has held that an ad-interim order for an indefinite period is impermissible; the duration must be limited.

Interlocutory orders other than injunctions — Rules 6 to 10

Rules 6 to 10 supply a small set of allied interlocutory powers. Rule 6 empowers the court to order the interim sale, on application of any party, of movable property which is the subject-matter of the suit or has been attached before judgment, where the property is subject to speedy and natural decay or where there is just cause for sale. Rule 7 empowers the court to order detention, preservation or inspection of any property which is the subject-matter of the suit, to authorise entry upon land or buildings for that purpose, and to authorise the taking of samples or experiments. Rule 8 deals with the procedure for applications under Rules 6 and 7 — notice to the opposite party, save where the object would be defeated by delay. Rule 9 empowers the court, where land paying revenue is the subject-matter and the party in possession has neglected to pay, to put any other party with an interest in the land into immediate possession on payment of the revenue. Rule 10 empowers the court to order deposit of money or things capable of delivery where a party admits he holds them as trustee for another.

Appeal and revision

An order under Rule 1 or Rule 2 — granting, refusing or varying an injunction — is appealable under Order XLIII Rule 1(r). An order under Rule 3 merely directing notice to issue is not, in the view of most High Courts, appealable, as it is not within the heads listed in Order XLIII. The Punjab and Haryana High Court has held that an appeal lies against an ex parte order of interim injunction. Revision under Section 115 against an interlocutory injunction order is generally not maintainable, since the order is interlocutory in nature; the High Court may, in an appropriate case, treat the petition as one under Article 227 of the Constitution.

The Supreme Court has cautioned appellate courts not to interfere with a sound exercise of discretion at first instance. Where the trial court has, on objective consideration of the material, arrived at a finding on prima facie case, balance of convenience and irreparable injury, the appellate court will be loath to interfere merely because, on a fresh consideration, a different view is possible.

MCQ angle and exam pointers

Five distinctions recur in objective papers and ought to be locked in.

1. The three tests are cumulative. Prima facie case, balance of convenience, and irreparable injury must each be made out. Gujarat Bottling Co. v. Coca Cola (1995) 5 SCC 545.
2. Rule 3 reasons are mandatory. An ex parte injunction without recorded reasons under the proviso is liable to be vacated; failure to comply with the post-grant duties under clauses (a) and (b) is at the applicant’s risk.
3. Rule 3A — thirty days. An ex parte order pending beyond thirty days, without reasons recorded for the delay, gives the aggrieved party a right of immediate appeal.
4. Rule 2A — only wilful disobedience. Civil prison up to three months; attachment up to one year; sale and compensation thereafter. Both attachment and civil prison may be ordered together or separately.
5. Injunction does not void the alienation. Unlike Section 64 attachment, an injunction operates only in personam; the disobedient defendant is liable to Rule 2A consequences but the alienation itself is not void as against third parties.

The three-fold test from Gujarat Bottling Co. v. Coca Cola, the ex parte safeguards in Rule 3 and Rule 3A, the wilful-disobedience standard under Rule 2A, the relationship between Order XXXIX and the Specific Relief Act sections 38 to 42, and the limits on anti-suit injunctions are the authorities most likely to surface in mains-style questions on Order XXXIX.

Frequently asked questions

What are the three tests for grant of a temporary injunction?

Prima facie case, balance of convenience, and irreparable injury. The Supreme Court restated the test in Gujarat Bottling Co. Ltd v. Coca Cola Co. (1995) 5 SCC 545: the plaintiff must show that he has a prima facie case to go to trial, that the balance of convenience lies in his favour, and that he would suffer irreparable injury — injury that cannot adequately be remedied by damages — if the injunction is refused. The three tests are cumulative. A plaintiff who establishes only a prima facie case but fails on either of the other two grounds is not entitled to the relief. Mere existence of a triable issue is not enough.

What does Rule 3 require before an ex parte injunction may be granted?

The proviso to Rule 3, inserted in 1976, requires the court to record the reasons for its opinion that the object of the injunction would be defeated by delay if notice were given to the opposite party. The applicant must then, immediately after the order, deliver to the opposite party a copy of the application, the affidavit in support, the plaint, and the documents relied upon — or send them by registered post — and file an affidavit on the same or the next day stating that he has done so. Failure to comply with these post-grant duties is at the applicant's risk: the court may vacate the order without going into the merits.

What is the effect of Rule 3A on an ex parte injunction that is not disposed of within thirty days?

Rule 3A casts a three-pronged duty on the court when an ex parte injunction has been granted: notice must be given to the opposite party, final orders must be made within thirty days, and reasons must be recorded if the application cannot be disposed of within that period. Where the court neither disposes of the application within thirty days nor records reasons for the delay, the aggrieved party is entitled to a right of appeal under Order XLIII Rule 1(r) against the order remaining in force, even while the application for grant or vacation is still pending. The ex parte order does not, however, automatically lapse; it remains operative until vacated.

What are the consequences of disobedience of an injunction under Rule 2A?

The court that granted the injunction may order the property of the disobedient party to be attached and may also order him to be detained in civil prison for a term not exceeding three months. No attachment under Rule 2A remains in force for more than one year. If the disobedience continues at the end of the year, the attached property may be sold and compensation may be awarded out of the proceeds. Rule 2A applies only to wilful disobedience: mere disobedience, without knowledge of the order, does not attract the rule. The attachment and civil prison are independent measures and either may be ordered without the other; both may also be ordered together.

Does an injunction make a subsequent alienation void?

No. Unlike an attachment under Section 64 of the Code — which makes any private transfer of attached property contrary to the attachment void as against claims enforceable under the attachment — a temporary injunction operates only in personam. A defendant who alienates property in defiance of an injunction is liable to the consequences laid down in Rule 2A — attachment, civil prison up to three months, sale and compensation — but the alienation itself is not void as against third parties. This is one of the most-asked structural distinctions between Order XXXVIII (attachment) and Order XXXIX (injunctions).