JAMIA MILLIA ISLAMIA

FACULTY OF LAW

TEMPORARY INJUNCTION (ORDER 39)

CODE OF CIVIL PROCEDURE-II ASSIGNMENT

Submitted by

Shayan Zafar

20182859

Roll No.:58

B.A.LLB (Hons.) (VIIIth Semester) (Regular)

Batch: 2018-2023

Submitted to

Adv. Mr. Rajesh Sharda Sir

Guest Faculty
 INDEX

S.No CONTENTS
01. ACKNOWLEDGMENT
02. LIST OF ABBREVIATIONS
03. INTRODUCTION
04. KINDS OF INTERIM ORDERS
05. INJUNCTION
06. OBJECT AND NATURE OF INJUNCTION
07. LEGAL PROVISIONS OF INJUNCTION
08. TEMPORARY INJUNCTION
09. OBJECT OF INTERLOCUTORY INJUNCTION
10. INHERENT POWER OF COURT AND TEMPORARY INJUNCTION
11. CONCLUSION
12. BIBLIOGRAPHY
 ACKNOWLEDGEMENT
The success and final outcome of this assignment required a lot of guidance and assistance from
many people and I am extremely fortunate to have got this along the completion of my
assignment work. Whatever I have done is only due to such guidance and assistance and I could
not forget to thank them. I respect and thank Mr. Rajesh Sharda Sir, my Code of Civil Procedure-
II teacher for giving me an opportunity to do this assignment and providing me all support and
guidance which made me complete this assignment on time. I am extremely grateful to him for
providing such a nice support and guidance in this pandemic situation. Thank you Sir for your
support without your help and guidance it was impossible to bring up this assignment.

-SHAYAN ZAFAR
 INTRODUCTION

The meaning of interim is basically something which is temporary or for the time being. While
the term Order has been defined under Section 2(14) of the Code of Civil Procedure, 1908,
which means the formal expression of any decision of a civil court which is not a decree.
Therefore, interlocutory or interim orders may be defined as those orders which are passed by the
court during pendency of the suits. Interlocutory order is another word for interim orders.

The court may pass interim orders in form of commissions and letter of requests which are also
called incidental proceedings, arrest and attachment before judgment, temporary injunctions,
interim sale of movable property, detention, preservation, inspection of suit property, putting a
party in immediate possession of land or tenure, deposit of money in court, appointment of
Receiver, deposit of claim amount by defendant and security for costs.

An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant ,
directed to a party defendant in the action, or to a party made a defendant for that purpose,
forbidding the latter to do some act, or to permit his servants or agents to do some act, which he
is threatening or attempting to commit, or restraining him in the continuance thereof, such act
being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately
redressed by an action fit law.

Temporary Injunction 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.

Interim is basically something which is temporary or for the time being. While the term Order
has been defined under Section 2(14) of the Code of Civil Procedure, 1908, which means the
formal expression of any decision of a civil court which is not a decree. Therefore, interlocutory
or interim orders may be defined as those orders which are passed by the court during pendency
of the suits. Interlocutory order is another word for interim orders1.

1
Temporary Injunction under CPC, available at: https://lawcorner.in/temporary-injunction-under-cpc/
Such interim or interlocutory orders are of temporary nature. These temporary orders are required
because it was felt by legislature that sometimes a court is required to grant such relief or pass
such order as may be necessary to be passed. Then court can pass these temporary or interim
orders on the pillars of justice and equity. At the same time, any abuse of process thereof, during
the pendency of a proceeding is also mitigated. The rights of parties are protected in the interval
between the commencement of the proceeding and final adjudication.

The court may pass interim orders in form of commissions and letter of requests which are also
called incidental proceedings, arrest and attachment before judgment, temporary injunctions,
interim sale of movable property, detention, preservation, inspection of suit property, putting a
party in immediate possession of land or tenure, deposit of money in court, appointment of
Receiver, deposit of claim amount by defendant and security for costs.

Hence, interim or interlocutory orders play a crucial role in the conduct of litigation between
parties. Such interim orders are:

 Payment in Court (O.24);

 Security for Costs (O. 25);
 Commission (O.26);
 Arrest before Judgment (O. 38);
 Attachment before Judgment (O. 38);
 Temporary injunctions (O. 39);
 Interlocutory Orders (O. 39); and,
 Appointment of Receiver (O.40).

Section 94 summarizes the general powers of the court in regard to interlocutory proceedings. It
lays down that, in order to prevent the ends of justice from being defeated, the court may:

a) Issue a warrant to arrest the defendant;

b) Direct the defendant to furnish security, to produce any property and place it at the court’s
disposal, or order the attachment of any property;
c) Grant a temporary injunction, an in case of disobedience, commit the guilty person to
civil prison, etc.;
 d) Appoint a receiver of any property, and enforce the performance of his duties by attaching
and selling his property;

e) Make any other interlocutory orders.

KINDS OF INTERIM ORDERS

Interim orders are necessary to deal with and protect rights of the parties in the interval between
the commencement of the proceedings and final adjudication. They enable the court to grant such
relief or to pass such orders as may be necessary, just or equitable. They also prevent any abuse
of process during the pendency of proceedings. Hence, interim or interlocutory proceedings play
a crucial role in the conduct of litigation between parties.

The interim orders under the Civil Procedure Code of 1908 may be summarized as under:

1. Payment in Court:- Order 24.

2. Security for Costs:- Order 25.
3. Commissions:- Order 26.
4. Arrest before Judgment:- Order 38.
5. Attachment before Judgment:- Order 38.
6. Temporary Injunction:- Order 39.
7. Interlocutory Orders:- Order 39.
8. Receiver:- Order 40.

INJUNCTION
An Injunction is an equitable remedy which is “a judicial process that compels a party to refrain
from doing or to do a particular act or thing”. If any person disobeys the Order of Injunction
passed by the Competent Court then there can be stiff monetary penalties and even imprisonment
in certain instances. The primary purpose of granting interim relief is the preservation of property
in dispute till legal rights and conflicting claims of the parties before the court are adjudicated.
However, Injunction can also be modified or dissolved if circumstances change in future. Section
94, 95 and Order 39 of the Civil Procedure Code precisely talks about the Injunctions and
whereas, the temporary and perpetual injunctions are defined under section 36 to 42 of the
Specific Relief Act2.

OBJECT AND NATURE OF INJUNCTION

The primary purpose of granting interim relief is the preservation of property in dispute till legal
rights and conflicting claims of the parties before the court are adjudicated. The court in the
exercise of sound judicial discretion can grant or refuse to grant interim relief.

As is the case with any legal concept, injunctions have been subjected to
multiple definitions throughout the history of jurisprudence. Joyce defined it as “an order
remedial, the general purpose of which is to restrain the commission of some wrongful act of the
party informed”.

Burney attempted to define the concept of injunction as, “a judicial process, by which one who
has invaded or threatens to invade the rights of another is restrained from continuing or
commencing such wrongful act”.

But perhaps, the definition which holistically captures the essence of injunctions is the one
provided by Halsbury who claimed that “An injunction is a judicial process whereby a party in
an order to refrain from doing or to do a particular act or thing”.

An injunction is characterized by three important notions which include the presence of a judicial
proceeding, the relief which is granted is in the form of a restraint, and lastly, that the restrained
act needs to be wrongful on the grounds of equity.

2
Dr. Avtar Singh, Code of Civil Procedure, Central Law Publication, Allahabad.
 LEGAL PROVISIONS OF INJUNCTION
Indian courts regulate the granting of a temporary injunction in accordance with the procedure
laid down under Sections 94, 95 and Order XXXIX of the Civil Procedure Code, whereas,
temporary and perpetual injunctions are prescribed by Sections 36 to 42 of the Specific Relief
Act.
KINDS OF INJUNCTIONS

Injunctions are mainly of different kinds. They are as follows:

 Temporary Injunction.
 Perpetual Injunction.
 Prohibitory Injunction.
 Mandatory Injunction.

PERPETUAL INJUNCTION:

Perpetual/Permanent Injunctions is granted by the courts to restrain the party forever from doing
the act complained of. However, this perpetual or permanent injunction can only be granted after
final hearing and decree has been passed by the court and this is completely decided on the merits
of the case. Permanent or Perpetual Injunctions are governed by section 38 to 42 of Specific
Relief Act, 1963. It determines the rights and liabilities of the parties finally.

For example: “A” has rented his Flat to “B” who is a tenant, and ‘B’ has failed to pay the rent
since the last 2 months. ‘A’ may request the court to grant an injunction against the tenant’s
continued use of the property and ask for eviction from A’s property.

Another example “A” a father in a Hindu family intended to alienate the family property. B, C,
and D, the legal heirs of A. B filed an injunction suit against A wherein A was restrained from
alienating the family property more than his own share. It is not necessary for the B to wait until
the waste (damages to house/property) is actually committed to bring an action for injunction but
is sufficient if such an intention is expressed by the A.

PROHIBITORY INJUNCTION:

The Competent Court can grant the Prohibitory Injunction to restrains or forbids a person from
doing some act i.e. the order is passed as not to do any act. Prohibitory Injunction is also known
as preventive or restrictive Injunction.

For Example: A and B are residing in the same Society. B wanted to trespass the A premises
unlawfully.  A claim before competent court for Injunction to direct B that “B should not enter A
premises”. Telling not to do a certain kind of act is a Prohibitory Injunction.
MANDATORY INJUNCTION:

The Competent Court can grant the Mandatory Injunction to do some positive act or compels,
commands or orders some person to do something in a particular manner. Section 39 of Specific
Relief Act, 1963 does not define but categorically deals with the grant of Mandatory Injunction.
In mandatory Injunction two elements has to be taken into consideration before granting
Mandatory Injunction:

There must be an obligation on the part of the defendant to perform certain acts, the breach of
which obligation, must be alleged by the plaintiff.

Relief must be enforceable by the court.

Example: “A” a tenant, without the permission of the Landlord has built a garden terrace which is
an addition to the rented house. According to the leave and License agreement, “A” has to take
prior permission of the Landlord to do any type of alterations/addition/changes to the rented
house. So here “B” may seek a mandatory injunction to demolish the garden terrace
which “A” has built without the permission of the Landlord.

So basically, Mandatory Injunctions are sometimes availed of as reliefs in the nature of ‘quia
timet’, that is, in a proper case, mandatory injunction may be granted when there is a threat of
infraction of the plaintiff’s right before the infraction has actually occurred.

TEMPORARY INJUNCTION
Temporary Injunction 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 or rights as he is trying to dispose of part of the
property, the plaintiff can claim the injunction.

Temporary injunction is a provisional remedy that is invoked to preserve the subject matter in its
existing condition. Its purpose is to prevent dissolution of the plaintiff's rights. The main reason
for use of a temporary injunction is the need for immediate relief.

Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the Court may
in order to prevent the ends of justice from being defeated, grant a temporary injunction or make
such other interlocutory order as may appear to the Court to be just and convenient. Section 95 of
Civil Procedure Code further provides that where in any suit a temporary injunction is granted
and it appears to the Court that there were no sufficient grounds, or the suit of the plaintiff fails
and it appears to the Court that there was no reasonable or probable ground for instituting the
same, the Court may on application of the defendant award reasonable compensation which may
be to the extent of the pecuniary Jurisdiction of the Court trying the suit3.

ORDER 39 RULE 1

Under Order 39 Rule 1, the Court has power to grant an Ex-parte temporary injunction. But the
same should be granted only under exceptional circumstances. The factors which should weigh
are as under-

(i) whether irreparable or serious mischief will ensue to the plaintiff,

(ii) whether refusal of ex-parte injunction would involve greater injustice than the grant of
it would involve,
(iii) the time at which the plaintiff first had notice of the act complained of,
(iv) whether the plaintiff had acquiesced for some time,
(v) whether the application is made in utmost good faith and
(vi) in any case, an ex-parte order even if granted must be for a limited period of time.

ORDER 39 RULE 2

Rule 2 of Order 39 enables the Court to grant temporary injunction to restrain the defendant from
committing the breach of contract or other injury of any kind. In a suit for Specific Performance,

3
Dr. C. K Takwani, Civil Procedure Limitation & Commercial Courts, Eastern Book Company
the Court will decline to grant a temporary injunction if the plaint and affidavit filed by the
parties show on the face of them that the case is not one for a perpetual injunction or for specific
performance. No temporary injunction can be granted if final relief cannot be granted.

ORDER 39 RULE 3

Rule 3 of Order 39 confers on the Court a power to grant an ex-parte interim injunction and has
prescribed a particular procedure for passing of an injunction order without notice to the other
party, under exceptional circumstance. The Court must record reasons for passing such an order
that the object of granting injunction would be defeated by the delay. The requirement of giving
reasons as laid down in the proviso is mandatory.

ORDER 39 RULE 4

Rule 4 of Order 39 says that order for injunction can be discharged, varied or set aside by the
Court on application made thereto by any party dissatisfied with such order. The proviso speaks
that if in an application for temporary injunction or in any affidavit in support of it, a party has
knowingly made a false or misleading statement in relation to a material particular and the
injunction was granted without giving notice to the opposite party, the Court shall vacate the
injunction unless for reasons to be recorded it considers that it is not necessary to do so.

PRINCIPLES

The power to grant a temporary injunction is at the discretion of the court. The discretion
however should be used reasonably, judiciously and on sound legal principles. Injunctions should
not be lightly granted as it is adversely affects the other side. The grant of injunction is in the
nature of equitable relief, and the court has undoubtedly power to impose such terms and
conditions as it thinks fit.

While granting temporary injunction the tests be applied are,

(i) Whether the plaintiff has a prima facie case,

(ii) Whether the balance of convenience is in favour of plaintiff and
(iii) Whether the plaintiff would suffer irreparable injury if his prayer for temporary
injunction is disallowed.
The court while granting or refusing to grantinjunction 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 that which 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.

At the stage of deciding the application for temporary injunction, the Court is not required to go
into the merits of the case in detail.

Generally, before granting the injunction, the court must be satisfied about the following aspects:

(i) One who seeks equity must come with clean hands.
(ii) One who seeks equity must do equity.
(iii) Whenever there is right there is remedy.

The power to grant a temporary injunction is at the discretion of the court. This discretion,
however, should be exercised reasonably, judiciously and on sound legal principles. Injunction
should not be lightly granted as it adversely affects the other side. The grant of injunction is in
the nature of equitable relief, and the court has undoubtedly power to impose such terms and
conditions as it thinks fit. Such conditions, however, must bereasonable so as not to make it
impossible for the party to comply with the same and thereby virtually denying the relief which
he would otherwise be ordinarily entitled to.

THE OBJECT OF THE INTERLOCUTARY INJUNCTION

As per the Rule 3 of Order XXXIX of the Civil Procedure Code, 1908, the power to grant an ex-
parte interim injunction in exceptional circumstances based on sound judicial discretion to
protect the plaintiff from apprehended injury may be granted. As per Rule 3A of Order XXXIX
of Civil Procedure Code where an injunction has been granted without giving notice to the
opposite party, the Court shall make an endeavor to finally dispose of the application within 30
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.
 BASIC INGREDIENTS

It is well settled that in granting or refusing to grant temporary injunction, the Court has very
wide discretion. The exercise of the discretion should be in a judicial manner, depending upon the
circumstances of each case. No hard and fast rule can be laid down for the guidance of the Court
to that effect. It is well settled that while 85 granting injunction plaintiff must show the following.

(i) existence of prima facie case,

(ii) balance of convenience and
(iii) the injury must be of an irreparable loss that cannot be compensated in
terms of money.

PRIMA FACIE CASE

The first rule is that the applicant must make out a prima facie case in support of the right
claimed by him. The court must be satisfied that there is a bonafide dispute raised by the
applicant, that there is a strong case for trial which needs investigation and a decision on merits
and on the facts before the court there is a probability of the applicant being entitled to the relief
claimed by him. The existence of a prima facie right and infraction of such right is a condition
precedent for grant of temporary injunction. The burden is on the plaintiff to satisfy the court by
leading evidence or otherwise that he has a prima facie case in his favour.

Prima facie case, however, should not be confused with a case proved to the hilt. It is no part of
the court's function at that stage to try, to resolve a conflict of evidence nor to decide
complicated questions of fact and of law which call for detailed arguments and mature
considerations. These are matters to be dealt with at the trial. In other word, the court should not
examine the merits of the case closely at that stage because it is not expected to decide the suit
finally. In deciding a prima facie case, the court is to be guided by the plaintiff's case as revealed
in the plaint, affidavits or other materials produced by him.

The plaintiff should come before the Court with clean hands. If he suppresses material facts,
documents then he is not entitled for the relief of injunction and further points of balance of
convenience, irreparable injury even not required to be considered in such case4.

4
Justice P. S Narayana, Code of Civil Procedure, (Asia Law House, Hyderabad).
In Prakash Singh v. State of Haryana5, 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. v. Satyanarayana Singh –

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.

IRREPARABLE INJURY

The existence of the prima facie case alone does not entitle the applicant for a temporary
injunction. The applicant must further satisfy the court about the second condition by showing
that he will suffer irreparable injury if the injunction as prayed is not granted, and that there is no
other remedy open to him by which he can protect himself from the consequences of
apprehended injury. In other words, the court must be satisfied that refusal to grant injunction
would result in 'irreparable injury' to the party seeking relief and he needs to be protected from
the consequences of apprehended injury. Granting of injunction is an equitable relief and such a
power can be exercised when judicial intervention is absolutely necessary to protect rights and
interests of the applicant. The expression irreparable injury however does not mean that there
should be no possibility of repairing the injury. It only means that the injury must be a material
one, i.e. which cannot be adequately compensated by damages. An injury will be regarded as
irreparable where there exists no certain pecuniary standard for measuring damages.

In Best Sellers Retail India (P) Ltd. v. Aditya Nirla Nuvo Ltd 6., 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 favor 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.”

BALANCE OF CONVENIENCE

5
2002 (4) Civil L.J.71 (P.H.)
6
(2012 ) 6 SCC 792 
 The third condition for granting interim injunction is that the balance of convenience must be in
favor of the applicant. In other words, the court must be satisfied that the comparative mischief,
hardship or inconvenience which is likely to be caused to the applicant by refusing the injunction
will be greater than that which is likely to be caused to the opposite party by granting it.

In Bikash Chandra Deb v. Vijaya Minerals Pvt. Ltd. 7, the Hon’ble Calcutta High Court observed
that issue of balance of convenience. The Court shall slender in favor of overview of the concept
of balance of convenience, but does not mean and suggest that the balance would be on one side
and not in favor of the other. There must be proper balance between the parties and the balance
cannot be a one-sided affair.

OTHER FACTORS

There are some other factors which must be considered by court while granting injunction. The
relief of injunction may be refused on the ground of delay, laches or acquiescence or whether the
applicant has not come with the clean hands or has suppressed material facts, or where monetary
compensation is adequate relief.

As per amended Section 9-A (2) of the C.P.C, 1908, the Court is empowered to grant such
interim relief as it may consider necessary, pending determination by it of the preliminary issue
as to the jurisdiction.

INHERENT POWER OF COURT AND TEMPORARY INJUNCTION

There was a conflict of judicial opinion on the question whether the Court could issue a
temporary injunction U/s.151 of Civil Procedure Code when the case did not fall within the term
of Order XXXIX Rule 1 and 2 of Civil Procedure Code.

However, now that point is concluded by the Hon'ble Apex Court in the case of Manmohanlal v.
Seth Hiralal.,8 by observing that the Court has powers under section 151 of Civil Procedure

7
2005 (1) CHN 582
8
(A.I.R.1962 Supreme Court 527)
 Code to issue an injunction in cases not falling within Order XXXIX Rule 1 and 2; however that
discretion should be exercised judiciously. For the purpose of implementation of an injunction
order Police protection can be ordered U/s.151 of Civil Procedure Code. However, the Court
shall not order for Police protection on the basis of an ad-interim ex-parte order and only final
order under Order XXXIX Rule 1, 2 can be enforced with police assistance. An order granting
Police aid without giving a chance to the defendant to submit his objections is not proper9.

CONCLUSION

An injunction is an equitable remedy and as such attracts the application of the maxim that he
who seeks equity must do equity. Granting of injunction is entirely in the discretion of the Court,
though the discretion is to be sound and reasonably guided by Judicial Principles.

The power to grant a temporary injunction is at the discretion of the court. This discretion,
however, should be exercised reasonably, judiciously and on sound legal principles. Injunction

9
Prof. M. P Jain, The Code of Civil Procedure, (Lexis Nexis India, Gurgaon).
should not be lightly granted as it adversely affects the other side. The grant of injunction is in the
nature of equitable relief, and the court has undoubtedly power to impose such terms and
conditions as it thinks fit. Such conditions, however, must be reasonable so as not to make it
impossible for the party to comply with the same and thereby virtually denying the relief which
be would otherwise be ordinarily entitled to. The general rule is that grant of an injunction is a
matter of discretion of the court and it cannot be claimed as of right. However, the discretion has
to be exercised in a judicious manner and in accordance with the provisions relating to the grant
of injunction contained in the specific Relief Act. It is well settled that no interim injunction
would be issued if final relief cannot be granted. When plaintiff has no personal interest in the
matter, injunction cannot be granted.

BIBLIOGRAPHY

S.NO BOOKS REFERRED AUTHOR

01. CIVIL PROCEDURE LIMITATION & COMMERCIAL COURTS C.K TAKWANI

02. THE CODE OF CIVIL PROCEDURE AVTAR SINGH

03. CODE OF CIVIL PROCEDURE C K THAKKER

IMPORTANT ACTS:

1. The Code of Criminal Procedure, 1973

2. The Indian Evidence Act
3. The Indian Penal Code
4. The Code of Criminal Procedure (Amendment) Act, 2005
5. The Code of Criminal Procedure (Amendment) Act, 2008