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Interlocutory Application

2018-07-20 17:40:00
Interlocutory Application

The civil rule of practice and circular orders, 1980 Chapter 1, -Preliminary- Rule 2 (J) defines Interlocutory Application as:

"Interlocutory application" implies an application to the Court in any suit, appeal or proceeding already instituted in such Court, other than a proceeding for execution of a decree or order.

Chapter V of the said order deals with the proceedings of an Interlocutory Application-

·         Rule 53 to 55, 58 and 59 of Civil Rules of Practice further deals with about the form, contents, separate application for each distinct prayer, and

·         Service of notice to other parties and every interlocutory application shall be supported by an affidavit and true copies of application, affidavit and the documents shall be furnished to the opposite party or counsel.

ENQUIRIES AND REQUESTS IN INTERLOCUTORY APPLICATIONS:

·         Temporary injunctions,

·         Attachment before Judgment,

·         Appointment of Commissioners and Receivers.

TEMPORARY INJUNCTIONS:

The Law relating to injunctions in India is by and large governed by the principles laid down by the Courts of Chancery in England.

An injunction is a judicial procedure whereby a party is requested to forgo doing or to do specific act or thing. In the previous case it is known as a prohibitive injunction and in the later an obligatory injunction.

Injunction may be either final remedy obtained by a suit or a preliminary and interlocutory relief granted while the suit is pending. In the first case it is a decree in the second an order or writ. Keeping its forms aside, (decree or order) the remedy by ordinary injunction is wholly preventive, prohibitory or protective.

Order 39 Rules 1 to 5 corresponding to Sections 92, 93, 95 and 96 of C.P.C., Act VIII of 1859 and Sections 492 to 497 of C.P.C. Act XIV of 1882 may be mentioned as certain of the statutory provisions dealing with the law relating to injunctions.

Order XXXIX of the Code of Civil Procedure, 1908 deals with temporary injunctions and interlocutory orders. Order XXXIX, Rule 1 reads -

“1. Where in any suit it is proved by affidavit or otherwise:

§  That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party of the suit, or wrongfully sold in execution of a decree, or

§  That the defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors,

§  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 burden of establishing the three ingredients for granting of temporary injunction is on the plaintiff. Except in exceptional circumstances normally an ex parte injunction cannot be granted. The factors to be considered for granting ex parte interim injunction were specified as follows:

(a) Where 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 an improper order against a party in his absence is prevented;

(d) The Court will consider whether the plaintiff had acquiesced for some time and in such circumstances, it will not grant ex parte injunction;

(e) The Court would except 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; and

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

CASE LAWS ON TEMPORARY INJUNCTIONS: 

Transitory injunctions are, for example, are to proceed until a predefined time or until the point that the further request of the Court and they might be regulated at any phase of suit and are managed by the Code of Civil Procedure, 1908. Courts for the most part issue injunctions where the privilege sought to be protected is clear and not where it is doubtful.

(Union of India vs. Amrik Singh, AIR 1963 Punj. 104)  A temporary injunction cannot be granted to establish a new state of things differing from the state of things which existed on the date when proceedings were instituted.

(Nandan Pictures Ltd. vs. Art Pictures Ltd., AIR 1956 Cal 428)  The Court cannot grant an injunction unless the Court is competent to try the suit.

Injunction by Original Court:- An injunction can be granted where there is a material injury infringing a clear legal right.

(Straight Vs Bura) L.R.5 Ch.AP.165: Alilandammal Vs. Venkatachala Mudali, 6 M.H.C.R.112). The Court of first instance can grant temporary injunctions (Order 39 Rules 1&2)or perpetual injunctions (Sec 36&37 of the Specific Relief Act,1963)or mandatory injunctions (Sec.39 of the Specific Relief Act,1963) depending upon the facts and circumstances of each case. An injunction granted “pendente lite” until the disposal of the suit or further orders will end in any case on the disposal of the suit or any earlier date on which further orders may be passed. The words until further orders do not extend its duration beyond the date of decree. (Balbahadur Vs Bala, AIR 1924 Mad.178)

In Nawab Mir Barkat Ali Khan vs. Nawab Zulinquar Jahh Bahadur and others (AIR 1975 A.P. 187 at 190), the Division Bench of the Andhra Pradesh High Court on the aspect of granting or refusing to grant a temporary injunction held as follows: “It is well settled that the grant or refusal of a temporary injunction is covered by three well established principles viz.,

(1) Whether the petitioners have made out a Prima facie case

(2) Whether the balance of convenience is in their favor i.e., whether it could cause greater inconvenience to them if the injunction is not granted than the inconvenience which the opposite party or persons claiming through the opposite party would be put to if the temporary injunction is granted

(3) Whether the petitioners would suffer irreparable injury with the first condition as sine qua non at least two conditions should be satisfied by the petitioner conjunctively and a mere proof of one of the three conditions does not entitle the petitioners to obtain a temporary injunction in their favor.” Injunction by appellate Court:- An appellate Court will have the same powers just like a Court of original jurisdiction in the case of granting injunctions. (Kanhai vsBidday,1 All 549)

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