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BA-LLB (HONS) – 5THSEMESTER

CIVIL PROCEDURE CODE - RESEARCH PAPER (2021-2022)

TOPIC – AWARD OF INJUNCTION WITHOUT NOTICE

SUBMITTED TO – MR. PRANAY JOSHI

SUBMITTED BY – SOUMYA SHRIVASTAVA

SAP ID – 81012019586
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TABLE OF CONTENTS

Topic Page no.

Abstract 3
Chapter 1: Introduction 4-5
Chapter 2:Temporary Injunction 6 - 11
Chapter 3: Interim injunction without 12 - 13
notice
Chapter 4: Concluding Remarks 14
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ABSTRACT

“The legal procedure of issuing an injunction to compel one party to perform, or abstain from
performing, a specific conduct. It is a legal remedy in the form of a court order directed at a
specific person and requiring that person to do something (in the case of a mandatory
injunction) or preventing him from doing something (in the case of a prohibitory injunction)
(Mandatory injunction).”

An injunction is "a court process wherein a party is directed to desist from doing or to do a
particular act or item," as defined by Halsbury's Laws. Injunction is defined as "a judicial
warning or a judicial order preventing a person from an activity or ordering that person to
carry out a specified act" by the Oxford English Dictionary.

This paper has been written specifically to help readers comprehend the interim court of the
order. That is, the already-existing temporary injunction. However, the parties benefit much
from the temporary injunction's utility. But the parties don't get the benefits of this one since
they aren't aware of it and because it wasn't properly established. More specifically, this
section also includes criticisms. Therefore, the purpose of this paper is to provide a
comprehensive analysis of the provision of temporary injunction. 
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CHAPTER 1: INTRODUCTION

1.1) Meaning of Injunction

“An injunction is a court order prohibiting or restraining a person from taking some activity
that threatens or infringes on the legal rights of another, or compelling that person to take
some action, such as paying damages to the damaged party. Injunction law in the United
States is rooted in Equity Jurisprudence, which was imported from England, which borrowed
the concept from ancient Roman law. According to our legal system, if there is a right there
must be a remedy.”

“Interim remedy is meant to preserve the integrity of the property at issue until the parties'
legal rights and competing claims are sorted out. The court, using its discretion, can decide
whether or not to issue an interim remedy. Temporary injunctions are meant to prevent any
changes from being made to the pre-litigation status quo until the case is resolved in court.
It's a form of injunctive relief granted to an injured party to prevent further harm.”

1.2) Object

“Interim relief is usually granted so that the property at issue can be protected while the legal
rights and competing claims of the parties before the court are resolved. Interim remedy
might be granted or denied at the court's discretion. Temporary injunctions are granted for the
purpose of maintaining the status quo that existed at the time of the commencement of
proceedings and preventing any changes to that status quo pending the final resolution of the
dispute. Protective relief is a court order that safeguards a party from further harm.”

1.3) Legal Provisions

When it comes to temporary injunctions, Indian courts follow the guidelines outlined in
Sections 94, 95, and Order XXXIX of the Civil Procedure Code, while the specifics for both
temporary and permanent injunctions can be found in Sections 36 to 42 of the Specific Relief
Act.
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1.4) Kinds of Injunctions

“Most injunctions are either temporary or permanent in nature. A person who has been issued
a permanent injunction cannot, under any circumstances, engage in the behaviour that first
prompted the injunction. A permanent injunction can only be granted by a final decision
made during the hearing and based on the merits of the case. However, a temporary or
interim injunction can be obtained on an interlocutory application at any point during the
litigation process. Since the injunction will remain in effect just until the matter is closed or
until the Court delivers a new judgment, it is referred to as a temporary injunction.”

1.5) Who may apply and against whom it can be issued?

A plaintiff or a defendant may make an application for grant of an injunction. An injunction

may be issued only against a party and not against a stranger or a third party. It also cannot be
issued against a judicial officer.”

1.6) Injunctions under the Indian Civil Procedure Code, 1908

Sections 94 and 95 of the CPC stipulate those rules to be created under which a court might
direct injunctive reliefs in a specific instance, and that rules be prescribed under Order 39.
Injunctions, ex parte ad interim and permanent, are dealt with in Order 39 (1) and (2), whilst
interim measures, which may or may not be interim injunctions, are dealt with in Order 38
and especially Rule 5 where we ask someone to give security1.

Order 39 (1) and (2)

Order 39 focuses on ex parte interim remedies. When a temporary injunction is needed

without notifying the opposing party, the court will issue the remedy ex parte ad interim.
There are now established standards that have been codified through several judicial
pronouncements. It was decided by the Supreme Court in Morgan Stanley v. Kartick Das2
that, typically, a court should not provide ex parte ad interim relief without first hearing from
the party seeking it. Let the other side know if an interim injunction is about to be issued.
Awards of injunctions should be made only in exceptional cases where the omission to do so
would result in serious injustice and irreparable harm.

1
Civil Procedure Code, 1908
2
(1994) 4 SCC 225
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Rule 3 is all about the “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 give 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 reasons for its opinion that the object of granting the 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 oil which the applicant
relies, and (b) to file on the day on which such injunction is granted or on the day
immediately following, that day, an affidavit stating that the copies aforesaid have been so
delivered or sent.
Rule 3A is all about the Order XXXIX of Code of Civil Procedure 1908 “Court to dispose of
application for injunction within thirty days”.

Where an injunction has been granted without giving notice to the opposite party, the Court
shall make an Endeavour to finally dispose of the application within thirty days from the date
on which the injunction was granted; and where it is unable so to do; it shall record its
reasons for such inability.

CHAPTER 2: TEMPORARY INJUNCTION

2.1) Scope

It provides that when the defendant threatens to dispossess the plaintiff or otherwise cause
injury to the plaintiff in relation to any property in dispute in suit, the Court may grant a
temporary injunction to restrain such an act or make other order for the purpose of preventing
the dispossession of the plaintiff or for the purpose of preventing the causing of injury to the
plaintiff in relation to any property in dispute.”

If the defendants are creating third party interest/rights as he is trying to dispose of part of the
property, the plaintiff can claim the injunction.
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The purpose of a temporary injunction is to maintain the status quo of the subject matter
while the case is pending. The goal of this motion is to ensure that the plaintiff's rights are not
lost. A temporary injunction is typically used when urgent relief is required. In order to avoid
the objects of justice from being defeated, the Court may give a temporary injunction or make
such other interlocutory order as may appear to the Court to be just and convenient under the
requirements of Code of Civil Procedure Section 94 (c) and (e). According to Section 95 of
the Civil Procedure Code, if a temporary injunction is issued in a case without reasonable or
probable grounds, or if a plaintiff's suit is dismissed without reasonable or probable grounds,
the court may, at the defendant's request, award reasonable compensation up to the extent of
the court's pecuniary jurisdiction.”

2.2) Principles

The Supreme Court stated in the Agricultural Produce Market Committee Case3 that "a
temporary injunction can be issued only if the party seeking injunction has a finished right,
capable of being enforced by way of injunction."

Through a series of historic decisions, including the Gujarat Bottling Co. Ltd. Case4, the
Supreme Court has made it clear that lower courts must adhere to specific rules while
deciding whether or not to give a temporary injunction which are:

 “The applicant seeking relief of temporary injunction shall have to establish a prima
facie case in his favor. For this purpose, the Court will not examine the merits of the
case rather only the basic facts on which it is established that the applicant has a prima
facie case to contest. Thereafter the applicant also has to establish that the allegations/
averments made in the application on which the temporary injunction is sought are
plausible.”
 “The court will also examine the conduct of the applicant and such conduct needs to
be examined even at the stage where the application for setting aside an order under
Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 is filed.”
 “The court has to examine the balance of convenience i.e. the balance of comparative
loss caused to the applicant and the respondent in the case of not passing the order.”
 “The court will first of all will examine what is the extent of loss that would be caused
to the applicant if the order is not passed and also whether it is reparable by monetary

3
Agricultural Produce Market Committee Vs. Girdharbhai Ramjibhai Chhaniyara , AIR 1997 SC 2674
4
Gujarat Bottling Co. Ltd. Vs. Coca Cola Co. – AIR 1995 SC 2372
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compensation i.e. by payment of cost. Then it will examine the loss suffered by
respondent if the order is passed and thereupon it has to see which loss will be greater
and irreparable. The party who would suffer greater loss would be said to be having
balance of convenience in his favor and accordingly, the court will pass or refuse to
pass the order. The court has the power also to ask the party to deposit security for
compensation or to give an undertaking for the payment of the compensation, if
ordered.”
 “Whether the plaintiff would suffer irreparable injury if his prayer for temporary
injunction is disallowed.”

In deciding whether or not to issue an injunction, the court should use its best judgment and
weigh the potential for harm to each party if the injunction is denied against the likelihood of
harm to the other party if the injunction is issued. An injunction would be given if the court,
after considering all of the relevant factors, concludes that the status quo should be preserved
while the case is pending because of the possibility of injury. Thus, the court must use its
good faith judgment to decide whether or not to issue an ad interim injunction while the case
is pending.

When making its decision on an application for temporary injunction, the Court need not
weigh in on the merits of the underlying matter. In most cases, the court will require proof of
the following before issuing an injunction:

- One who seeks equity must come with clean hands.

- One who seeks equity must do equity.
- Whenever there is right there is remedy.

“The court has the authority to issue a temporary injunction if it deems it necessary. This
discretion, however, must be used sensibly, fairly, and in accordance with established legal
norms. The opposite side will be harmed if an injunction is granted too quickly. When a court
issues an injunction, it is providing a form of equitable remedy, and as such, it has the
authority to set whatever restrictions it sees fit. However, any such conditions must be fair
under the circumstances, or the party would be effectively denied the relief to which he is
otherwise entitled.”

Any discretion exercised in granting a temporary injunction should be done so lawfully.

There is no way to provide the court with a set of rules to follow in such cases. Thus, it is
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generally established that the judge must determine whether the Application falls into one of
the below-mentioned categories/has Plaintiff proven following grounds before granting the
temporary injunction5:

A) Prima Facie Case: Each application must include sufficient evidence to establish at
least a presumption in favour of the Applicant's or Plaintiff's position. The probe is
warranted because the parties have a genuine dispute, thus the Court should be
pleased. The onus is on the plaintiff to present sufficient evidence and testimony to
persuade the court that he has a prima facie case. When filing a lawsuit, a plaintiff
must do it with nothing but if the Plaintiff has failed to disclose any information that
is material to the case, the Plaintiff is not entitled to any remedy.”

“In Martin Burn Ltd vs. R.N. Banerjee6 – The Supreme Court held that a 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 led in support of the same were believed. It does not involve the
determination of the conflict of evidence or complex questions of fact and law, which call
for detailed arguments.”

“It further requires that the Plaintiff should come before the Court with clean hands. If he
suppresses material facts and evidence then he is not entitled for the relief of injunction
and further points of balance of convenience, irreparable injury need not be considered in
such case.”

“In Prakash Singh vs. State of Haryana7,– The  Court has explained that Prima Facie
does not mean that a Plaintiff/Applicant should have a full proof case in his favour which
will succeed in all probabilities. It means that the plaintiff/applicant has a case which
cannot be rejected summarily or dismissed out right. It raises consideration which can be
considered on merits.”

“In Orissa State Commercial Transport Corporation Ltd. Vs. Satyanarayana

Singh8 – It was held that it is sufficient to show that the Plaintiff/Applicant has a fair
question as to the existence of his right and it is necessary to maintain status quo till the
matter is finally decided.”
5
Code of Civil Procedure by S.C.Sarkar and P.C. Sarkar, 12th edition
6
1958 AIR 79 SCR 514
7
2002 (4) Civil L.J.71 (P.H.) 
8
(1974) 40 Cut LT 336
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B) Irreparable Injury: In addition, the applicant must show the court that he will be
irreparably harmed if the injunction is not granted. The Court agrees that Plaintiff
requires protection from the potential for injury. When there is no agreed-upon
method of quantifying damages, an injury is considered irreparable.”

“However, just because something is described as irreparable does not indicate that it
cannot be fixed. This merely implies that the harm sustained must be significant i.e.
for which monetary damages would be grossly inadequate. When there is no concrete
monetary benchmark against which losses may be assessed, the harm done is
considered irreparable.”

The Supreme Court in Shanti Kumar Panda v. Shakuntala Devi9, where the court held
thus: “At the stage of passing an interlocutory order such as on an application for the grant of
ad interim injunction under Rule 1 or 2 of Order 39 of the CPC, the competent Court shall
have to form its opinion on the availability of a prima facie case, the balance of convenience
and the irreparable injury __ the three pillars on which rests the foundation of any order of
injunction.”

“In Best Sellers Retail India (P) Ltd. vs. Aditya Nirla Nuvo Ltd10. – the Hon’ble Supreme
Court held that only prima facie case alone is not sufficient to grant injunction and the Court
held that – 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.”

C) Balance of Convenience: In this application, the Applicant must show that the
balance of convenience is in his or her favour, meaning that granting the injunction
would cause less harm, hardship, or inconvenience overall than not granting it would.
When there is ambiguity about whether or whether each party has access to sufficient
remedies in damages, the balance of convenience comes into play.”

“In Bikash Chandra Deb vs. Vijaya Minerals Pvt. Ltd.11, the Hon’ble Calcutta High
Court observed that issue of balance of convenience. The Court shall slender in favour of
overview of the concept of balance of convenience, but does not mean and suggest that
9
2004 1 SCC 438
10
(2012 ) 6 SCC 792
11
2005 (1) CHN 582
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the balance would be on one side and not in favour of the other. There must be proper
balance between the parties and the balance cannot be a one-sided affair.”

“In Anwar Elahi vs. Vinod Misra and Anr12. It was held that Balance of convenience
means comparative mischief or inconvenience. It can be likely to issue from withholding
the injunction will be greater than that which is likely to arise from granting it. In
applying this principle, the Court has to consider the amount of substantial mischief that
is likely to be done to the applicant if the injunction is refused and compare it with that
which is likely to be caused to the other side if the injunction is granted.”

D) Other Factors: When deciding whether or not to issue an injunction, the court takes
into account a number of other issues. If the applicant has not come forward with
clean hands or has concealed material information, or if monetary compensation is
enough relief, then an injunction may be denied.”

2.3) When can a temporary injunction be rejected

“Order 39, Rule 1 of the Code of Civil Procedure of 1908 governs the circumstances under
which a temporary injunction may be granted. Therefore, it is necessary to explore the
grounds for denying a temporary injunction. Section 41 of the Specific Relief Act of 1963
emphasizes this same point.”

1. “Restrain any person from prosecuting a judicial proceeding at the institution of the
suit, in which injunction is sought, unless restraint is necessary to prevent
multiplicity of proceedings.”

2. “To restrain any person from instituting or prosecuting any proceeding in a Court
not subordinate to that, from which injunction is sought.”

3. “To restrain any person from applying to any legislative body.”

4. “To restrain any person from instituting or prosecuting any proceeding in a

criminal matter.”

12
60 (1995) DLT 752
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5. “To prevent the breach of a contract the performance of which could not be
specifically enforced.”

6. “To prevent on the ground of nuisance, an act of which it is not reasonably clear
that it will be a nuisance.”

7. “To prevent a continuing breach in which the plaintiff has acquiesced.”

8. “When equally efficacious relief can certainly be obtained by any other usual mode
of proceeding except in case of breach of trust.”

9. “When the conduct of the plaintiff or his agents has been such as to disentitle him
to the assistance of the court.” 

10. “When the plaintiff has no personal interest in the matter.”

CHAPTER 3: INTERIM INJUNCTION WITHOUT NOTICE

3.1) Guiding principles for courts to follow

Usually, the court is required to issue a notice to the opposite party regarding the application
of injunction, but through Order 39, Rule 3, the court can grant an ex-parte injunction when it
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is under the belief that the object of the injunction would be defeated because of delay. The
Supreme Court through the case of Union of India v. Era Educational Trust (2000)13, laid
down certain guiding principles for courts to follow while deciding upon an ex-parte
injunction, they are:

 Whether the plaintiff will be a victim to irreparable mischief by the defendant?

 Whether the weight of injustice will be heavier if an ex-parte injunction is not

granted?

 Whether the timing of applying for an ex-parte jurisdiction was maliciously

motivated?

 The courts will also consider the general principle of balance and irreparable loss.

CHAPTER 4: CONCLUDING REMARKS

4.1) Conclusion

“In light of the foregoing, it can be concluded that neither the party nor the Court has an
absolute right to ask for or refuse to issue a temporary injunction. He who seeks equity must

13
2000 (5) SCC 57
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do equity applies to an injunction because it is a form of equitable relief. The decision to

issue an injunction rests solely within the Court's discretion. Ultimately, the Court's decision
will be based on the specific facts and circumstances of each case, as demonstrated by the
aforementioned principles. No matter how compelling the applicant's cause is, the relief
cannot be demanded as a matter of right. Therefore, the authority to issue an injunction must
be used with extreme caution.”

Thus, the rationale behind the provision of Order 39 of the Code of Civil Procedure, as laid
down by Hon’ble Supreme Court in the case of M. Gurudas and Ors. v. Rasaranjan and Ors14.
(2006) can be summarized as while considering an application for injunction, the Court
would pass an order thereupon having regard to prima facie, balance of convenience and
irreparable injury. The court should also keep in mind the guiding principles while granting
interim injunctions without as it can injure the other party. Award for injunction without
notice should only be granted in cases where it under the belief that the object of the
injunction would be defeated because of delay.

14
AIR 2006 SC 3275