Bare Acts
Code of Civil Procedure Code, 1908 O.39 to 40 Commentary
12. Agricultural produce not attachable before judgment.-
Nothing in this Order shall be deemed to authorize the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.
Case Cited
1. Union Bank v. Dhankula, AIR 1985 AP 375.
2. Union Bank of India, Guntur v. Dhanakula Venkataramiah AIR1985AP375.
COMMENTS
The expression 'agricultural produce' includes growing crop, standing or stacked for threshing or stored (Union Bank v. Dhankula).1 It is evident from a reading of the Rule that there is a total ban upon attachment before judgment of agricultural produce. In this case, the property attached is paddy, which is undoubtedly, an agricultural produce (Union Bank of India, Guntur v. Dhanakula Venkataramiah).2.
Also see Sections 60 and 61 of this Code.
1[13. Small Causes Court not to attach immovable property.-
Nothing in this Order shall be deemed to empower any Court of Small Causes to make an order for the attachment of immovable property.]
ANNOTATIONS
High Court Amendment Kerala
In Order XXXVIII, in rule 13, for the words
"Court of Small Causes", substitute the
words "Court exercising Small Cause jurisdiction".
[Vide Notification No, Bl-3312/58, dated 09.06.1959.]
Pre 1976 Amendments
1. Ins. by Act No. 1 of 1926.
Order XXXIX
Temporary injunctions and interlocutory Orders
Temporary injunctions
1. Cases in which temporary injunction may be granted.-
[* * *] Where in any suit it is proved by affidavit or otherwise:
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the Defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,
(c) 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 Court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying
and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the Plaintiff, or otherwise causing injury to the Plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further Orders.
Amendments
ANNOTATIONS
by any party to the suit, or wrongfully sold in execution of
The amendment made to Rule (1) by the
Code of Civil Procedure Amendment Act 1999 vide its section 30 was later repealed by the Code of Civil Procedure Amendment Act 2002. Further, the Sub-rule (2) inserted by 1999 Amendment Act was repealed by 20002 Amendment Act.
The Code of Civil Procedure Amendment Act 1976 substituted the text "defrauding" for the text "defraud" in sub-clause (b) of Rule 1. The 1976 Amendment Act further inserted clause (c) to Rule (1). It also inserted in the text after sub-clause (c) as "or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit".
Effective Date of Amendment
The Code of Civil Procedure (Amendment) Act, 1976 wef. 01.02.1977
High Court Amendments Andhra Pradesh
For Order XXXIX, for Rule 1, substitute the following rule, namely:
"1. Where in any suit it is proved by affidavit or otherwise-
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated
a decree, or
(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors; or
(c) that the defendant threatens to dispossess the plaintiff, or otherwise cause injury or loss to the plaintiff,
the Court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting damaging alienation sale, removal or disposition of the property, or dispossessing or otherwise causing injury or loss as the Court thinks fit, until the disposal of the suit or until further orders." (w.e.f. 26.07.1956).
Gauhati and Calcutta
In Order XXXIX:
(a) renumber Rule 1 as Sub-rule (1) thereof; and
(b) after Sub-rule (1) as so renumbered, insert the following Sub-rules, namely:
Kerala
"(2) In case of disobedience, or of breach of the terms of such temporary injunction or order, the Court granting the injunction or making such order may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil person for a term not exceeding six months, unless in the meantime the Court directs his release. (3) The property attached under Sub- rule (2) may, when the Court considers it fit so to direct, be sold and, out of the proceeds, the Court may award such compensation to the injured party as it finds proper and shall pay the balance, if any, to the party entitled thereto." (w.e.f. 03.02.1933)
(c) after Sub-rule (1) as so renumbered, inset the following Sub-rule , namely:
"(2) In case of disobedience of any order passed under Sub-rule (1) the Court granting injunction may proceed against the person guilty of such disobedience under Sub-rules
(3) and (4) of rule 2 of this Order." (w.e.f. 09.06.1959)
Orissa
Same as in Patna.
Patna
In Order XXXIX, in Rule 1, at the end, insert the following provisos, namely: "Provided that no such temporary injunction shall be granted if it would contravene the provisions of section 56 of the Specific Relief Act (Act 1 of 1877):
Provided further that an injunction to restrain a sale, or confirmation of a sale, or to restrain delivery of
Order XXXIX:
(a) renumber rule 1 as Sub-rule (1) thereof;
(b) in Sub-rule (1) as so renumbered, in clause (a), after the words "wrongfully sold", insert the words "or delivered";
possession, shall not be granted except in a case where the applicant cannot lawfully prefer, and could not lawfully have preferred, a claim to the property or objection to the sale, or to the attachment preceding it, before the Court executing the decree."
Case Cited
1. Dalpat Kumar v. Prahlad Singh MANU/SC/0056/1993: AIR 1993 SC 276, Reliance Big Entertainment Pvt. Ltd. v. Percept Limited MANU/DE/0080/2009, 7th Channel Communications v. Roja Combines; MANU/TN/8617/2007: 2007 (35) PTC 938 (Mad), Thangam v. Jayavarma Textiles Private Limited MANU/TN/2390/2005.
2. The Municipal Corporation of Greater Mumbai v. Shri Bhikanlal Nanakchand Sharma
MANU/MH/1031/2006: (2007) 109 BOM LR 430.
3. Atlas Interactive (India) Pvt. Ltd. v. BSNL 126 (2006) DLT 504, Frankfinn Aviation Services Pvt. Ltd. v. B.C. Gupta MANU/DE/8609/2007.
4. Arun Kapur and anr. v. Atul Kapur MANU/TN/0480/2008.
5. E.M. Ahmu v. P.S. Ramalingam MANU/KE/0009/1993: AIR 1993 Ker 33.
6. Madan Mohan v. Revti Prasad MANU/RH/0033/1977: AIR 1977 Raj 191.
7. Sm. Muktakesi Dawn v. Haripada Mazumdar MANU/WB/0005/1988: AIR 1988 Cal 25.
8. Reliance Big Entertainment Pvt. Ltd. v. Percept Limited MANU/DE/0080/2009.
9. Dorab Cawasji Warden v. Coomi Sorab Warden MANU/SC/0161/1990: AIR 1990 SC 867, Dinesh Chandra Jaiswal v. State of Uttaranchal MANU/UC/0058/2003: AIR 2004 Utr 19, Hindustan Petroleum Corporation Ltd. v. Sri Sriman Narayan MANU/SC/0578/ 2002: AIR 2002 SC 2598, National Insurance Company Ltd. v. Sh. R. Harcharan Singh Bhullar MANU/PH/0022/1992: AIR 1992 P&H 86.
10. D. C. Warden v. C. S. Warden, MANU/SC/0161/1990: AIR 1990 SC 867 : 1990 (2) SCC
117; S. Radhakrishna Murthy v. K. Narayanadas MANU/AP/0144/1982: AIR 1982 AP 384; Sanjay v. Vishnupant MANU/MH/0957/2007: 2007 (6) Mh LJ 550.
11. Bhikari Majhi v. Baidyanath Barik (1979) 47 CLT 433, Chief Accounts Officer, Telecom District and Anr. MANU/OR/0251/2003: AIR 2004 Ori 47.
12. Wander Ltd. v. Antox India P. Ltd. MANU/SC/0595/1990: 1990 Supp (1) SCC 727, Reliance Big Entertainment Pvt. Ltd. v. Percept Limited MANU/DE/0080/2009, Eureka Forbes Ltd. v. Pentair Water India Pvt. Ltd. MANU/KA/0141/2007: 2007 (4) Kar LJ 122, Hindustan Construction Ltd v. State of Bihar, MANU/SC/0654/1999: AIR 1999 SC 3710; Micolube India Ltd. v. Maggon Auto Centre MANU/DE/0180/2008: 150 (2008) DLT 458, Cable News Network LP, LLLP (CNN) v. Cam News Network Limited MANU/DE/ 0022/2008: 2008 (36) PTC 255 (Del), Ahmed Oomerbhoy v. Shri Gautam Tank MANU/ DE/9210/2007: 146 (2008) DLT 774, Cadila Healthcare Ltd. v. Gujarat Co-operative Milk Marketing Federation Ltd. MANU/DE/2707/2007: 2008 (36) PTC 168 (Del).
13. Aboobucker v. Kunhamai MANU/TN/0436/1957: AIR 1958 Mad 287.
14. Indian Cables v. Sumitra Chakravorty, MANU/WB/0063/1985: AIR 1985 Cal 248.
15. Bans Ropan v. IIIrd Addl. Distt. Judge, Ghazipur MANU/UP/0036/1993: AIR 1993 All 117.
16. Union of India v. Era Educational Trust, MANU/SC/0253/2000: AIR 2000 SC 1573 : 2000 (5) SCC 57.
17. Dorab Cawasji Warden v. Coomi Sorab Warden MANU/SC/0161/1990: AIR 1990 SC 867, Dinesh Chandra Jaiswal v. State of Uttaranchal MANU/UC/0058/2003: AIR 2004 Utr 19, Hindustan Petroleum Corporation Ltd. v. Sri Sriman Narayan MANU/SC/0578/ 2002: AIR 2002 SC 2598, National Insurance Company Ltd. v. Sh. R. Harcharan Singh Bhullar MANU/PH/0022/1992: AIR 1992 P&H 86.
18. Mrs. Angela John S. Rao v. N. Lakshminarayana, (1978) 2 Andh WR 340, S. Radhakrishna Murthy v. K. Narayanadas MANU/AP/0144/1982: AIR 1982 AP 384 M.M. Gurudas v. Rasaranjan MANU/SC/8491/2006: AIR 2006 SC 3275, Varalakshmi v. Janakiraman, Ramu MANU/TN/0563/2009, Eureka Forbes Ltd. v. Pentair Water India Pvt. Ltd. MANU/KA/0141/2007: 2007 (4) Kar LJ 122.
19. Cotton Corporation of India v. United Industrial Bank MANU/SC/0375/1983: AIR 1983 SC 1272, Maharashtra Jeevan Pradhikaran v. Lark Construction Pvt. Ltd. MANU/MH/ 1036/2004: AIR 2005 Bom 161.
20. L.D. Malhotra Industries v. Ropi Industries MANU/DE/0150/1975: ILR 1976 Delhi 278.
21. Aziz Traders v. The Chairman, Gujarat Electricity Board MANU/GJ/0047/1986: AIR 1986 Guj 145.
22. Naba Kishore Das v. Umakanta Mohapatra MANU/OR/0063/1985: AIR 1985 Ori 222.
23. Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai MANU/UP/0532/2003: AIR 2004 All 107.
24. Prem Singh v. Ceeam Auto Ltd., MANU/DE/0455/1990: AIR 1990 Del 233.
25. Warner Bros. Entertainment Inc. v. Harinder Kohli MANU/DE/1333/2008: 155 (2008) DLT 56.
26. Laxmikant V. Patel v. Chetanbhai Shah, MANU/SC/0763/2001: AIR 2002 SC 275.
27. A. Venkatasubbiah Naidu v. S. Chellappan, MANU/SC/0584/2000: AIR 2000 SC 3032 : 2000 (7) SCC 695.
28. M/s. Anand Associates v. Nagpur Improvement Trust, MANU/SC/0873/2000; AIR 2000 SC 3350.
29. M.S.V. Raja v. Seeni Thevar, MANU/SC/0449/2001: AIR 2001 SC 3389 : 2001 (6) SCC 652
30. Grid Corpn. of Orissa v. Indian Charge Chrome Ltd., MANU/SC/0365/1998: AIR 1998 SC 1761 (1766) : 1998 (5) SCC 438 ; Dalpat Kumar v. Prahlad Singh MANU/SC/0056/1993:
AIR 1993 SC 276, Reliance Big Entertainment Pvt. Ltd. v. Percept Limited MANU/DE/ 0080/2009, 7th Channel Communications v. Roja Combines MANU/TN/8617/2007: 2007
(35) PTC 938 (Mad), Thangam v. Jayavarma Textiles Private Limited MANU/TN/2390/ 2005; Shri Govind Sarda v. Sartaj Hotels Apartments and Villas Pvt. Ltd. MANU/DE/0371/ 2008; Shri Tejpal Singh Bhatia v. Union of India (UOI) MANU/DE/7995/2007; K.V. Natarajan and N. Lakshmi v. K.V. Anantharaj, Dr. A. Prabhavathi and Rajas Educational Trust (2008) 5 MLJ 94; K. Vishnu Kumar Reddy, Member, Nellore Bar Association v. Inspector General of Registration MANU/AP/0801/2007: 2008 (1) ALT 36.
31. Chand Sultana v. Khurshied, MANU/AP/0160/1963: AIR 1963 AP 365.
32. Sridhar Panda v. Taramani dibya 1997 (3) CL.J. 579.
33. Reebok India Company v. Gomzi Active MANU/KA/0781/2006: ILR 2006 KAR 3961.
34. D. D. A. v. Skipper Constructions, MANU/SC/0497/1996: AIR 1996 SC 2005 : 1996 (4) SCC 622.
35. Smt. Laxmi Dei v. Shyam Sundar Hans & Siba Prasad Singh v. Shyam Sundar Hans
MANU/OR/0273/2004: AIR 2005 Ori 78.
36. A. Venkatasubbiah Naidu v. S. Chellappan, MANU/SC/0581/2000: AIR 2000 SC 3032 : 2000 (7) SCC 695.
37. Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai MANU/UP/0532/2003: AIR 2004 All 107.
38. Mst. Kamroon Nisha Bibi v. Yusuf Khan MANU/OR/0068/1987: AIR 1987 Ori 234.
39. Ganta Chinna Shankaraiah v. Nadunoori Swamy MANU/AP/0244/2006: 2006 (6) ALT 178.
40. Prem Shankar Gupta v. Delhi Development Authority MANU/DE/0077/2008: 147 (2008) DLT 517.
41. U. C. O. Bank v. Bank of India, MANU/SC/0003/1981: AIR 1981 SC 1426 : 1981 (2) SCC 766
42. Asian Hotel v. Municipal Corpn., (1987) 2 Cur CC 1085 Del.
43. Sehjiv Kumar Tandon v. Delhi Electric Supply Undertaking MANU/DE/0027/1994: AIR 1994 Delhi 202.
44. Fakirbhai Bhagwandas v. Maganlal Haribhai MANU/MH/0115/1951: AIR 1951 Bom 380, State of Maharashtra v. Md. Sharif Haji Sharif MANU/MH/1371/2007: 2008 (3) Bom CR 381.
45. K.S. Balasubraniauiam v. S. Munuswamy MANU/TN/0129/2000: 2000 ( 2 ) CTC 417,
Enercon (India) Ltd. v. J.T. Micheal Anjalo MANU/TN/0503/2005: 2005 (2) CTC 365
46. Ganpatlal v. Nandlal Haswani MANU/MP/0043/1989: AIR 1989 MP 209.
47. Svenska Handelbanken v. M/s Indian Charge Chrome, MANU/SC/0138/1994: AIR 1994 SC 626 : 1994 (1) SCC 502.
48. Jain Exports v. Union of India, MANU/SC/1218/1996: AIR 1996 SC 2739 : 1996 (5) SCC 619.
49. Syed Mubasheruddin Ahmed v. Syeda Nuzhat Murtuza MANU/AP/0378/2005: AIR 2006 AP 45.
50. Shyama Kishore Bal v. Kishore Talkies 1995 (1) C L.J. 921, Shri Kashi Math Samsthan
v. Srimad Sudhindra Thirtha Swami, Sri Vyasashrama MANU/AP/0042/2009.
51. Nanak Chand v. Union of India, MANU/UP/0119/1974: AIR 1974 All 471.
52. Sakthi Durga Builders and Developers v. P.S. Raman MANU/TN/7793/2006: 2007 (3) CTC 163.
53. Gujarat Bottling Co. Ltd. v. Coca Cola Co. MANU/SC/0472/1995: AIR 1995 SC 2372, Hindustan Petroleum Corporation Ltd. v. Sri Sriman Narayan MANU/SC/0578/2002: AIR 2002 SC 2598, M.P. Housing Board v. Anil Kumar Khiwani MANU/SC/0202/2005: AIR 2005 SC 1863, M. Gurudas v. Rasaranjan MANU/SC/8491/2006: AIR 2006 SC 3275; Gujarat Bottling Co. Ltd. v. Coca Cola Co. MANU/SC/0472/1995: AIR 1995 SC 2372, Reliance Big Entertainment Pvt. Ltd. v. Percept Limited MANU/DE/0080/2009, Rana Steels v. Ran India Steels Pvt. Ltd. MANU/DE/0476/2008: 2008 (37) PTC 24 (Del), Canon Kabushiki Kaisha v. B. Mahajan MANU/DE/1747/2007: 2007 (35) PTC 265 (Del), Info Edge (India) Pvt. Ltd. v. Shailesh Gupta MANU/DE/0735/2002: 98 (2002)
DLT 499; Varikoti Nagaraju v. Varikoti Bhadraiah MANU/AP/0603/2005: AIR 2006 AP 86, Syed Mubasheruddin Ahmed v. Syeda Nuzhat Murtuza MANU/AP/0378/2005: AIR 2006 AP 45.
54. Narmadha Chemicals (P) Ltd. v. Siva Shakthi Soap Works AND Siva Shakthi Soap Works v. Narmadha Chemicals (P) Ltd. MANU/TN/7784/2006.
55. Israil v. Shamser Rahman ILR 1914 41 Cal. 436, Dorab Cawasji Warden v. Coomi Sorab Warden MANU/SC/0161/1990: AIR 1990 SC 867.
56. Swarn Prabha v. K. Kumar, (1988) 2 Cur CC 379 Ori.
57. Sunita Agrawal v. Nirmal, MANU/BH/0022/1978: AIR 1978 Pat 112.
58. Jagannathpur S. C. Society v. A. C. Patnaik, (1989) 1 Cur CC 274 Ori.
59. Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass MANU/SC/0912/2004: AIR 2005 SC 104.
60. National Insurance Company Ltd. v. Sh. R. Harcharan Singh Bhullar MANU/PH/0022/ 1992: AIR 1992 P&H 81.
61. N.V. Chowdhary v. Hindustan Steel Works Construction Ltd. MANU/AP/0149/1984: AIR 1984 AP 110 (DB), Nawab Mir Barkat Ali Khan v. Nawab Zulfiquar Jah Bahdur 1976 (1) AWR 32, Sridhar Panda v. Taramani dibya 1997 (3) CL.J. 579.
62. Pepsi Co., Inc. v. Hindustan Coca Cola Ltd. MANU/DE/0896/2003: 2003 (27) PTC 305 (Del).
63. Gujarat Bottling Co. Ltd. v. Coca Cola Co. MANU/SC/0472/1995: AIR 1995 SC 2372,
M.P. Housing Board v. Anil Kumar Khiwani MANU/SC/0202/2005: AIR 2005 SC 1863.
64. State of A.P. v. Mohd. Jalaluddin Akbar MANU/AP/0339/2004: 2004 (4) ALD 109.
65. Dr. M. Mahalingam v. Smt. Shashikala MANU/KA/0287/2008: ILR 2008 KAR 4055.
66. Gangubai Bablya Chaudhary v. Sitaram Bhalchandra Sukhtankar MANU/SC/0286/ 1983: AIR 1983 SC 742, Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev MANU/ SC/0386/1999: AIR 1999 SC 2171.
67. Prem Singh v. Ceeam Auto Ltd., MANU/DE/0455/1990: AIR 1990 Del 233.
68. Alagi A. Achi v. P. Mudaliar, MANU/TN/0279/1962: AIR 1962 Mad 149 ; Dayanand v.
Harpal, 1982 All LJ 178.
69. National Airport Authority v. Vijay Datt, MANU/MP/0064/1990: AIR 1990 MP 326 ; Amba Lal Maganlal v. I. N. Mohile, MANU/MH/0028/1990: AIR 1990 Bom 187.
70. M/s Gujarat Bottling Co. Ltd. v. Coca Cola Co., MANU/SC/0472/1995: AIR 1995 SC 2372 : 1995 (5) SCC 545.
71. Dalpat Kumar v. Prahlad Singh, MANU/SC/0056/1993: AIR 1993 SC 276 : 1992 (1) SCC 719
72. Hindustan Petroleum Corporation Ltd. v. Sri Sriman Narayan, MANU/SC/0578/2002: AIR 2002 SC 2598 : 2002 (5) SCC 760.
73. U. P. Junior Doctors' Action Committee v. Dr. B. Sheetal Nandwani, MANU/SC/0555/ 1992: AIR 1992 SC 671, Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai MANU/UP/ 0532/2003: AIR 2004 All 107; Gramophone Company of India Limited v. Shanti Films Corporation MANU/WB/0008/1997: AIR 1997 Cal 63.
74. Anand Prasad Agarwalla v. Tarkeshwar Prasad, MANU/SC/0350/2001: AIR 2001 SC 2367 : 2001 (5) SCC 568.
75. Federal Bank Ltd. v. V.M. Jog Engineering Ltd. MANU/SC/0626/2000: AIR 2000 SC 3166.
76. The State Trading Corporation of India Ltd. v. Jainsons Clothing Corporation MANU/ SC/0548/1994: AIR 1994 SC 2778.
77. Hindustan Construction Ltd v. State of BiharMANU/SC/0654/1999: AIR 1999 SC 3710.
78. Ganpatlal v. Nandlal Haswani MANU/MP/0043/1989: AIR 1989 MP 209.
79. Canon Kabushiki Kaisha v. B. Mahajan MANU/DE/1747/2007: 2007 (35) PTC 265 (Del).
80. Wander Ltd. v. Antox India P.Ltd. MANU/SC/0595/1990: (1990) Suppl. SCC 727, Heinz Italia v. Dabur India Ltd. MANU/SC/2133/2007: (2007) 6 SCC 1.
81. N.R. Dongre v. Whirlpool Corpn. MANU/SC/1223/1996 : (1996) 5 SCC 714, Milmet Oftho Industries v. Allergan Inc. MANU/SC/0512/2004: (2004) 12 SCC 624.
82. Swaran Singh v. Usha Industries (India) MANU/DE/0366/1985: AIR 1986 Delhi 343, Allianz Aktiengesellschaft Holding v. Allianz Capital & Management Services Ltd. MANU/ DE/2049/2001: 2002 (24) PTC 177 (Del).
83. Nanak Chand v. Kohinoor Chemical Co. Ltd. (1970) 2 Del 344, Allianz Aktiengesellschaft Holding v. Allianz Capital & Management Services Ltd. MANU/DE/2049/2001: 2002
(24) PTC 177 (Del).
84. Synthetic Moulders v. Samperit Samperit Aktieregeselshaft 1980 RLR 263, M/s. Veerumal Praveen Kumar v. M/s. Needle Industries (India) Ltd. MANU/DE/0757/2001: 93 (2001) DLT 600.
85. Wearwell Cycle Co. (India) Ltd. v. Wearwell Industries, Ludhiana MANU/DE/0182/1968: 5 (1969) DLT 469, M/s. Veerumal Praveen Kumar v. M/s. Needle Industries (India) Ltd. MANU/DE/0757/2001: 93 (2001) DLT 600.
86. Allianz Aktiengesellschaft Holding v. Allianz Capital & Management Services Ltd. MANU/ DE/2049/2001: 2002 (24) PTC 177 (Del).
87. Mariappan v. A.R. Safiullah, Mr. Daniel, Jayam Industries MANU/TN/0828/2008: 2008
(38) PTC 341 (Mad).
88. S.M.K.A. Enterprises v. Suchita Industries MANU/KA/7478/2007: 2008 (2) Kar L J285.
89. Karam Singh Trading as Mankoo Engineering Works v. Master Machine & Service 1981 PTC 14, Pfizer Products Inc. v. Rajesh Chopra MANU/DE/1650/2007: 2007 (35) PTC 59 (Del).
90. Telemecanique & Controls (I) Limited v. Schneider Electric Industries SA 2002 (24) PTC 632 Delhi (DB), Mariappan v. A.R. Safiullah, Mr. Daniel, Jayam Industries MANU/ TN/0828/2008: 2008 (38) PTC 341 (Mad).
91. National Research Development Corporation of India, New Delhi v. The Delhi Cloth and General Mills Co Ltd AIR 1980 Delhi 132, Telemechanique and Controls (I) Ltd. v. Schneider Electric Industries SA MANU/DE/1264/2001, J. Mitra and Co. Pvt. Ltd. v. Kesar Medicaments MANU/DE/0306/2008: 148 (2008) DLT 198.
92. Mariappan v. A.R. Safiullah, Mr. Daniel, Jayam Industries AND A.R. Safiullah v. Mr. Daniel, Jayam Industries MANU/TN/0828/2008: 2008 (38) PTC 341 (Mad).
93. Aktiebolaget Volvo of Sweden v. Volvo Sheets Limited of Gujarat (India) 1998 IPLR 63, Star India Private Limited v. Leo Burnett (India) Private Limited MANU/MH/1030/2002: 2003 (27) PTC 81 (Bom).
94. Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd. MANU/SC/0039/2003: AIR 2003 SC 1177, (India TV) Independent News Service Pvt Limited v. India Broadcast Live LLC, MANU/DE/1703/2007: 2007 (35) PTC 177 (Del).
95. Indrawati v. Balu Ghosh, AIR 1990 Pat .
96. Vijay v. Mirahul, MANU/DE/0426/1987: AIR 1988 Del 140.
97. Kishore Kumar Khaitan v. Praveen Kumar Singh MANU/SC/0940/2006: AIR 2006 SC 1474, Arun Kapur and anr v. Atul Kapur MANU/TN/0480/2008.
98. K.V. Natarajan and N. Lakshmi v. K.V. Anantharaj, Dr. A. Prabhavathi and Rajas Educational Trust MANU/TN/0697/2008: (2008) 5 MLJ 94.
99. Faridabad Complex Adm. v. Yadu, MANU/SC/0474/1997: AIR 1997 SC 1985: 1997 (3) SCC 491
100. Premji Ratnasey Shah v. Union of India 1994 (3) ALT 25, Kadupugotla Varalakshmi v.
Vudagiri Venkata Rao MANU/AP/0507/2007: 2007 (5) ALD 747.
101. Tamil Nadu Housing Board v. A. Viswam (dead) by LR's, MANU/SC/0924/1996: AIR 1996 SC 3377.
102. Delhi Development Authority v. Skipper Constructions Co. (P.) Ltd., MANU/SC/0497/ 1996: AIR 1996 SC 2005.
103. State of Andhra Pradesh v. State of Karnataka, MANU/SC/0297/2000: AIR 2001 SC 1560 : 2000 (9) SCC 572.
104. BALCO Employees Union v. Union of India, MANU/SC/0779/2001: AIR 2002 SC 350.
105. Ajmer Kaur v. Punjab State MANU/PH/0003/1991: AIR 1991 P&H 12.
106. Ajmer Kaur v. State of Punjab, MANU/PH/0003/1991: AIR 1991 P&H 12.
107. Veermalai v. E. Srinivas, MANU/TN/0196/1985: AIR 1985 Mad 128 (FB).
108. Datta Devasthan Trust, through its Secretary, Shrikant Digambarrao Kavthekar v. Milind Govind Kshirsagar MANU/MH/0082/2007: 2007 (3) Mh LJ 148.
109. Arjun Singh v. Mohinder Kumar MANU/SC/0013/1963: AIR 1964 SC 993, Shri Rakesh Madan v. Rajasthan Financial Corporation MANU/DE/0059/2009.
110. Morgan Stanley Mutual Fund v. Piyush Aggarwal MANU/DE/0187/1994: AIR 1994 Delhi 186, Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai MANU/UP/0532/2003: AIR 2004 All 107, Union of India v. Era Educational Trust MANU/SC/0253/2000: (2000) 5 SCC 57.
111. Zila Parishad, Budaun v. Brahma Rishi Sharma MANU/UP/0057/1970: AIR 1970 All 376, Mangal Achi v. Asokan MANU/TN/0251/1973: AIR 1973 Mad 258, Raj Kumari Suri v. Prem Lal Dhiman MANU/HP/0015/1972: AIR 1972 HP 67, Andhra University v.
P.V. Raju (1974) 2 Andh WR 17, Devasahayam v. Arumukhan AIR 1953 Trav Co 240, Ramulu v. Ganga Ram AIR 1953 Hyd 138, United Club v. Nowgong Football Association of Nowgong AIR 1964 Assam 81, Shyam Behari Singh v. Biseswar Dayal MANU/BH/ 0267/1924: AIR 1924 Pat 713, Sk. Jusa v. Ganpat Dagdu Gire MANU/MH/0201/1976: AIR 1976 Bom 222, The Indian Hotels Company Ltd. v. Jiva Institute of Vedic Science MANU/DE/0892/2008: 2008 (37) PTC 468 (Del).
112. Rajendraprasad R. Singh v. Municipal Corporation of Greater Bombay MANU/MH/ 0379/2003: 2003(3)-Mh.L.J.757, Bomi Jal Mistry v. Joint Charity Commissioner of Mumbai MANU/MH/0021/2005: 2005 (2) Mh Lj 430.
113. Falcon Tyres Limited, rep. by its Chief Executive Officer v. TVS Srichakara Tyres Limited
MANU/TN/0632/2008: MIPR 2008 (3) 221.
114. Sree Jain Swetambar v. Phundan Singh, MANU/SC/0086/1999: AIR 1999 SC 2322 (2324) : 1999 (2) SCC 377.
115. Zila Parishad, Budaun v. Brahma Rishi Sharma MANU/UP/0057/1970: AIR 1970 All 376; Magotteaux Industries Pvt. Ltd. v. AIA Engineering Ltd. MANU/DE/1615/2008: 155 (2008) DLT 73.
118. Ganga Saran v. Civil Judge, Hapur, Ghaziabad AND Movi Iftakharul Hasan v. Special Judge, Muzaffarnagar MANU/UP/0025/1991: AIR 1991 All 114 (FB), Dinesh Chandra Jaiswal v. State of Uttaranchal MANU/UC/0058/2003: AIR 2004 Utr 19.
117. Union of India v. Era Educational Trust, AIR 2000 SC 1573, Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai MANU/UP/0532/2003: AIR 2004 All 107.
118. Surya Dev Rai v. Ram Chander Rai MANU/SC/0559/2003: AIR 2003 SC 3044, Varalakshmi v. Janakiraman, Ramu MANU/TN/0563/2009, Thangam v. Jayavarma Textiles Private Limited MANU/TN/2390/2005.
SYNOPSIS
1. Amendment in the Order 1692
2. Scope and Object 1692
3. Principles governing injunction . 1696
(a) Meaning: "Prima Facie
Case" 1697
(b) Balance of convenience 1698
(c) Irreparable Loss 1699
4. Conduct of a party seeking injunction 1700
5. Cases where injunction granted/ refused 1701
6. Bank Guarantee 1701
7.
Passing Off 1702
8. Patents 1704
9. Anti-suit Injunction 1704
10. Mandatory injunction 1705
11. Injunction against true
owner-No 1705
12. Injunction against public interest- Caution 1706
13. Jurisdiction 1706
14. Whether Res Judicata applicable to proceedings under Order 39 1706
15. Remedies against Order of injunction 1707
1. Amendment in the Order.
By the Amendment Act of 1999 Rule 1 of Order XXXIX was renumbered as Sub-rule 1 and after Sub-rule 1 Sub-rule 2 was inserted. By the Amendment Act of 1999, it was proposed that the Court after granting injunction, to curb the practice of delay in disposal of cases on flimsy grounds, shall ask for furnishing of security so that the party may not adopt delaying tactics during the trial of the case. But the Amendment Act, 1999 did not come in to force and it was omitted by the Amendment Act of 2002 as a result of which the original position of Rule 39 remains unchanged. The amendment of provisions came into force with effect from 1st.July,.2002. The rule requires that the Court shall by granting a temporary injunction of the nature mentioned in the Sub- rule, "directs the Plaintiff to give security or otherwise as the Court thinks fit".
2. Scope and Object.
Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the Court in exercise of the power of granting ad interim injunction is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the Court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the Court, there is probability of his being entitled to the relief asked for by the Plaintiff/Defendant; (2) the Court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.
The Court while granting or refusing to grant injunction 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 it 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. But the Court would be circumspect before granting the injunction and look to the conduct of the party, the probable injuries to either party and whether the Plaintiff could be adequately compensated if injunction is refused (Dalpat Kumar v. Prahlad Singh; Reliance Big Entertainment Pvt. Ltd. v. Percept Limited; 7th Channel Communications v. Roja Combines; Thangam v. Jayavarma Textiles Private Limited).1 Rules 1 and 2 of Order 39 thus enable the Court to pass interlocutory Orders in the nature of injunction which are to operate during the pendency of the suit however, Orders passed under these rules do not operate after the suit is decided (The Municipal Corporation of Greater Mumbai v. Shri Bhikanlal Nanakchand Sharma).2 Contracts which are determinable in nature cannot be specifically enforced and injunctions cannot be granted to prevent breach of such contracts (Atlas Interactive (India) Pvt. Ltd. v. BSNL; Frankfinn Aviation Services Pvt. Ltd. v. B.C. Gupta).3 Order 39 Rule 1 Code of Civil Procedure provides
scope for issuance of an Order of injunction, prohibitory or mandatory on an application filed by the Defendant also (Arun Kapur and anr. v. Atul Kapur).4
The Court is competent to grant an injunction without giving notice to the opposite party though ordinarily the Court shall direct notice of the application. The Court is empowered to grant an injunction without notice where it appears that the object of granting the injunction would be defeated by the delay (E.M. Ahmu v. P.S. Ramalingam).5 Maintenance of status quo in respect of possession of immovable property could also be one of the circumstances in which a civil Court may be entitled to issue a temporary injunction under this provision (Madan Mohan v. Revti Prasad).6 Rule 1 of Order 39, clearly demonstrates that, notwithstanding the Rule of lis pendens in Section 52 of the T. P. Act, there can be occasion for the grant of injunction restraining pendente lite transfers in a fit and proper case (Sm. Muktakesi Dawn v. Haripada Mazumdar).7
An injunction is an Order of a Court restraining a person or persons from doing certain act or compelling him to do certain act to redress the injured party. The injunctions are of two kinds temporary and permanent. This Order deals with temporary injunctions only. Nature of injunctions can also be divided into prohibitory and mandatory injunctions. The principles governing the grant of injunctions are well-settled. There may be cases in which grant of an injunction (temporary or permanent) will only meet the ends of justice and an alternative safeguard for the preservation of rights of the challenging party cannot at all be thought of. There may also be cases where the remedy of injunction has to be made flexible and adjustable to the situations arising in each case (Reliance Big Entertainment Pvt. Ltd. v. Percept Limited).8 The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining (Dorab Cawasji Warden v. Coomi Sorab Warden; Dinesh Chandra Jaiswal v. State of Uttaranchal; Hindustan Petroleum Corporation Ltd. v. Sri Sriman Narayan; National Insurance Company Ltd. v. Sh. R. Harcharan Singh Bhullar).9 However, the power is discretionary. The Court has to see prima facie case, irreparable loss and balance of convenience in favour of the party seeking temporary injunction before it is granted (D. C. Warden v. C. S. Warden; S. Radhakrishna Murthy v. K. Narayanadas; Sanjay v. Vishnupant).10
The object of temporary injunction is to preserve status quo while the rights are being litigated and onus to show the above mentioned three ingredients is on the party who seeks injunction. Under the provisions of Order 39, Rule 1 the Court can issue an injunction of a mandatory character, but such an injunction can only be issued to keep things in status quo during the pendency of the litigation. Before issuing a temporary mandatory Injunction the Court must be satisfied that the effect of the injunction would be to preserve the status quo during the pendency of the litigation and to prevent an irreparable injury to the Plaintiff. If the effect of the injunction would be to alter the status quo during the pendency of the suit no such injunction can be issued, because that would result in granting to the Plaintiff the remedy he seeks in the suit before the contentions of the contending parties are properly tried (Bhikari Majhi v. Baidyanath Barik; Chief Accounts Officer; Telecom District and Anr.).11 In Order to protect the Defendant while granting an interlocutory injunction in his favour the Court
can require the Plaintiff to furnish an under taking so that the Defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial (Wander Ltd. v. Antox India P. Ltd.; Reliance Big Entertainment Pvt. Ltd. v. Percept Limited; Eureka Forbes Ltd. v. Pentair Water India Pvt. Ltd.; Hindustan Construction Ltd v. State of Bihar; Micolube India Ltd. v. Maggon Auto Centre; Cable News Network LP; LLLP (CNN) v. Cam News Network Limited; Ahmed Oomerbhoy v. Shri Gautam Tank; Cadila Healthcare Ltd. v. Gujarat Co-operative Milk Marketing Federation Ltd.).12
An interim relief is granted to a person on the footing that the person is prima facie entitled to the right on which is based the claim for the main relief as well as the interim relief. The relief is granted as an interim measure till the disposal of the suit, in which is to be investigated the validity of the claim of right that has been put forward. If no such claim has been put forward in the suit, it means there can be no occasion for investigation of such a claim in the suit there can be no justification for the grant of an interim relief which will just lapse on the termination of the suit but which will leave the parties in the same position in which they were before the institution of the suit in the course of which the interim relief was sought and obtained (Aboobucker v. Kunhamai).13
Where grant of temporary injunction would amount practically granting the relief claimed in suit the Court should be very slow in granting such prayer (Indian Cables
v. Sumitra Chakravorty).14 Courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The Plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury, which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief (Bans Ropan v. IIIrd Addl. Distt. Judge; Ghazipur).15
Principles laid down under Order XXXIX, Code of Civil Procedure for granting ad interim reliefs are also required to be taken into consideration at the stage of granting interim relief in petition under Article 226 or 227 of the Constitution though Order XXXIX, Code of Civil Procedure would not be applicable (Union of India v. Era Educational Trust).16
Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as a pre-requisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion (Dorab Cawasji Warden v. Coomi Sorab Warden; Dinesh Chandra Jaiswal v. State of Uttaranchal; Hindustan Petroleum Corporation Ltd. v. Sri Sriman Narayan; National Insurance Company Ltd. v. Sh. R. Harcharan Singh Bhullar).17 Thus, in other words the petitioner is to establish that he has a prima facie case and that in the event the interim injunction is refused, he will suffer irreparable injury and the balance of convenience is in his favour (Mrs. Angela John S. Rao v. N. Lakshminarayana; S. Radhakrishna Murthy v. K. Narayanadas; M.M. Gurudas v. Rasaranjan; Varalakshmi
v. Janakiraman; Ramu; Eureka Forbes Ltd. v. Pentair Water India Pvt. Ltd.).18 It is undisputable that temporary injunction is granted during the pendency of the proceeding so that while granting relief the Court is not faced with a situation that the relief becomes infructuous or that during the pendency of the proceeding an unfair advantage is not taken by the party in default or against whom temporary injunction is sought. But power to grant temporary injunction was conferred in aid or as auxiliary to the final relief that may be granted. If the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly if ever be granted (Cotton Corporation of India v. United Industrial Bank; Maharashtra Jeevan Pradhikaran v. Lark Construction Pvt. Ltd.).19 In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done. The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made a subject of strict rules (L.D. Malhotra Industries v. Ropi Industries).20 The Courts have power to impose terms and conditions while granting and/or refusing interim relief under the provisions of Order 39, Rules 1 and 2 of the Code of Civil Procedure (Aziz Traders v. The Chairman; Gujarat Electricity Board).21 The Court in justifying circumstances can issue ex parte interim injunction for a temporary period under Order 39, Rule 1 of the Code and may in the same proceeding consider whether the period for which the injunction was granted would be extended till the final disposal of the suit or would be vacated (Naba Kishore Das v. Umakanta Mohapatra).22
The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the Plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the Plaintiff during the period before which that uncertainty could be resolved. In exceptional circumstances, where for one reason or the other Court feels compulsion to grant an interim relief which amounts to final relief, the Court must record reasons for passing such interim relief (Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai).23 A man who does not come to Court with clean hands is not entitled to injunction (Prem Singh v. Ceeam Auto Ltd.).24 In dealing with applications for ad interim injunctions, the Court, inter alia, takes the statements set out in the aforesaid applications as well as in the plaint to be statements of fact which are to be accepted at their face value. Any suppression or concealment of the material facts cannot, therefore, but be viewed as an attempt to pollute the stream of justice (Warner Bros. Entertainment Inc. v. Harinder Kohli).25
The Supreme Court would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the High Court and the Trial Court except where the discretion has been shown to have been exercised arbitrarily or capriciously or where the Order of the Court ignores the settled principles of law regulating grant or refusal of interlocutory injunction (Laxmikant v. Patel v. Chetanbhai Shah).26 It has also been held by the Supreme Court that where the statutory remedy to get interim ex parte injunction Order was available the High Court need not have entertained the revision petition (A. Venkatasubbiah Naidu v. S. Chellappan).27 In a case the trial Court, while disposing of the application for temporary injunction, also dismissed the suit, the Order was set aside by the Supreme Court which dismissed the suit itself
(M/s. Anand Associates v. Nagpur Improvement Trust).28 The High Court, for the first time in the second appeal cannot grant injunction in favour of the Plaintiff (M.S.V. Raja v. Seeni Thevar).29
3. Principles governing injunction.
The prima facie case, irreparable loss and balance of convenience must be shown by the party seeking temporary injunction (Grid Corpn. of Orissa v. Indian Charge Chrome Ltd.; Dalpat Kumar v. Prahlad Singh; Reliance Big Entertainment Pvt. Ltd. v. Percept Limited; 7th Channel Communications v. Roja Combines; Thangam v. Jayavarma Textiles Private Limited; Shri Govind Sarda v. Sartaj Hotels Apartments and Villas Pvt. Ltd.; Shri Tejpal Singh Bhatia v. Union of India (UOI); K.V. Natarajan and N. Lakshmi v. K.V. Anantharaj; Dr. A. Prabhavathi and Rajas Educational Trust; K. Vishnu Kumar Reddy; Member; Nellore Bar Association v. Inspector General of Registration)30 and it should not be given for mere asking (Chand Sultana v. Khurshied).31 An injunction is merely a process by which Court enforce equity. It is an Order of an equitable nature. It is a judicial process whereby, a party is Ordered to refrain from doing or to do a particular act or thing. The former is generally called 'restrictive injunction' and the latter is called "mandatory injunction". An interlocutory or interim injunction is to preserve matters "in suit" until the case can be tried. There must be some equitable ground for interference by injunction such as a necessity of preventing irreparable mischief or in cases when the injury apprehended is of a character as cannot be adequately compensated by damages or is one which must occasion constantly recurring grievance which necessitates a preventive remedy in Order to put an end to repeated perpetration of wrongs. This power has to be exercised sparingly or cautiously and only after thoughtful deliberation and with a full conviction on the party of the Court of its urgency and necessity.
Courts issue injunctions where the right which is sought to be protected is clear and unquestioned and not where the right is doubtful and there is no emergency and further where the injury threatened is positive and substantial and is irremediable otherwise. It is also an important rule that the conduct of the parties seeking injunction must not be tainted with unfairness or share practice. The principal function of an injunction is to furnish preventive action against irreparable mischief. An injury is deemed to be irreparable when having regard to the nature of the act and from the circumstances relating to the threatened harm. The apprehended damage cannot be adequately compensated with money. Grant or refusal of a temporary injunction is covered by three well-established principles viz. (1) Whether the applicant has made out a prima facie case; (2) Whether balance of convenience is in favour of the applicant, i.e. whether it would cause greater inconvenience 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 and (3) whether the petitioner would suffer irreparable loss or injury with the first condition as sine qua non (Sridhar Panda v. Taramani dibya).32 A party would be entitled to relief under Order 39 Rules 1 and 2 provided it satisfies the Court on three principles. The aforesaid three phrases, as emphasised time and again, are "not rhetoric phrases but elastic words to meet a wide range of situation in given set of facts and circumstances". Grant of temporary injunction entails serious consequences on the party against whom it is issued. Therefore, it cannot be lightly Ordered unless the requisite conditions and circumstances are established by the person who seeks protection (Reebok
India Company v. Gomzi Active).33 Supreme Court has expressed its displeasure where the interim injunction is granted mechanically (D. D. A. v. Skipper Constructions).34 While deciding an application under Order 39, Rules 1 and 2, Code of Civil Procedure the Court should not express any opinion on the merits of the case of the respective parties (Smt. Laxmi Dei v. Shyam Sundar Hans & Siba Prasad Singh v. Shyam Sundar Hans).35
An Order of ex-parte interim injunction can be passed under Order XXXIX, Rule 1. Such an Order is appealable (A. Venkatasubbiah Naidu v. S. Chellappan).36 In view of the settled legal proposition, the law on the subject can be summarized as under:
(1) While passing the interim Order, the Court must bear in mind the provisions of Order XXXIX of the Code of Civil Procedure while granting the interim relief.
(2) Interim relief should not be granted merely by asking that there must be sufficient ground for granting such relief.
(3) Interim relief which amounts to final relief which could have been granted at the time of final determination of the case should not be granted.
(4) In exceptional circumstances where the fact situation requires the Court to pass an interim relief amounts to final relief, the Court must record the reasons so that its correctness may be examined by the party/revisional Court (Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai).37
It is not the spirit of Order 39, Rules 1 and 2 of the Code to grant temporary injunction to restrain a party from enjoying the fruits of a lawful decree or Order. If a lawful and enforceable decree or Order has been passed in favour of a party it must be held that he has a prima facie case, balance of convenience is in his favour and he will be put to irreparable loss, if he is prevented by way of injunction from enjoying the fruits and benefits thereof (Mst. Kamroon Nisha Bibi v. Yusuf Khan).38 However, the power is to be exercised very sparingly and the interference to be slow and cautious, especially when relating to the ingredients to be satisfied either for granting or refusing temporary injunction, prima facie, concurrent findings had been recorded in a particular way by the Courts below (Ganta Chinna Shankaraiah v. Nadunoori Swamy).39
(a) Meaning: "Prima Facie Case"
To obtain an Order for interim injunction in his favor, the applicant must make out a "prima facie case" in support of right claimed by the applicant. The existence of a "prima facie" right and infraction of such right is a condition precedent for grant of interim injunction (Prem Shankar Gupta v. Delhi Development Authority).40 "Prima facie case" means the Plaintiff has serious question to be tried (U. C. O. Bank v. Bank of India).41 In other words 'prima facie case' does not mean fool-proof case and indicates only a bona fide triable issue (Asian Hotel v. Municipal Corpn.).42 While deciding the application under Order 39 Rules 1 and 2, and to form prima facie view the Court has to see the evidence available on the record (Sehjiv Kumar Tandon v. Delhi Electric Supply Undertaking).43
In Order to establish a prima facie case, the Plaintiff-petitioner is not required to establish his title (Fakirbhai Bhagwandas v. Maganlal Haribhai; State of Maharashtra
v. Md. Sharif Haji Sharif).44 It would be sufficient for him to show that he has a fair question to raise with regard to the existence of his right and that till such question
is decided finally, it is required to preserve the property in status quo. Lack of proof of any of the conditions will disentitle the party praying for interim injunction from getting such an Order. Prima facie case means that it needs serious consideration, investigation or determination. It does not mean proof at this stage. It means bona fide dispute requiring determination without pre-judging the case. In Order to find out whether there exists any prima facie case in favour of a party or not, it would be enough if it could be established that there was a seriously arguable question and it is not necessary that the point be proved to the hilt at that stage. Showing a reasonable chance of success is enough. The apparent strength of the applicant's case is the guiding factor. Then Court has to consider the balance of convenience and irreparable loss aspects. When the Court is called upon to examine whether applicant has a prima facie case for the purpose of granting temporary injunction, the Court must perforce examine the merits of the case. But the findings on various questions like right, title or interest in the suit land would be merely incidental or ancillary for the purpose of assessing the prayer for temporary injunction, and not for anything else and the said findings shall not be of any avail or effect for any other purpose.
While considering the grant of temporary injunction, if the Court feels that prima facie the suit itself is not maintainable, since the decree for permanent injunction cannot be granted in view of the bar under Section 41(h) of the Specific Relief Act it cannot be said that the Plaintiff has got a prima facie case (K.S. Balasubraniauiam v. S. Munuswamy; Enercon (India) Ltd. v. J.T. Micheal Anjalo).45 Under Section 41(a) read with Section 37(1) of the Specific Relief Act and Order 39, Rule 2, Code of Civil Procedure, Courts in India are obligated to consider "prima facie case" of Plaintiff in terms of those provisions and not of Section 52 of the Transfer of Property Act in the matter of grant of temporary injunction on Plaintiff's prayer (Ganpatlal v. Nandlal Haswani).46 An interim injunction that Bank guarantee be not encashed should not be granted on mere allegation of fraud as the same cannot be said to be prima facie case (Svenska Handelbanken v. M/s Indian Charge Chrome)47 and assuming it to be prima facie case, the amount being fixed and recoverable there is no irreparable loss in such cases. Granting interim injunction staying the recovery of duty from Plaintiff is improper even on the condition of taking undertaking (Jain Exports v. Union of India).48 It is a well settled principle that it is not necessary that all the three conditions must be satisfied. It is sufficient to satisfy at least two conditions, the first condition as to making out a prima facie case being sine qua non, to entitle a person to obtain temporary injunction (Syed Mubasheruddin Ahmed v. Syeda Nuzhat Murtuza).49
(b) Balance of convenience.
Balance of convenience means comparative convenience, mischief and inconvenience of the parties contesting an application for temporary injunction and the same may be equated with what had been left out after weighing prima facie case of parties. The inconvenience of the applicant if temporary injunction is refused will be balanced and compared with that of the other party, if it is granted. If the scale of inconvenience leans to the side of the Applicant, then only interlocutory injunction should be granted. Irreparable injury is one which is substantial and which cannot be remedied by damages. Balance of convenience necessarily brings in the concept of irreparable injury. The very first principle on which temporary injunction may be granted is that the Court will not grant it to restrain an actionable wrong for which damages might be proper remedy. When having regard to the facts and circumstances of the case,
the apprehended damage or injury cannot be adequately compensated by money. Such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the applicant in case of success in the suit would not place him in the position in which he was before. An injury is said to be irreparable where there exists no certain pecuniary standard of measuring the damage. "Irreparable injury" means "that species of damages, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other". Thus, an injury is irreparable where the damages are estimable only by conjecture, and not by any accurate standard. An injury is regarded as irreparable if there is no certain pecuniary standard for the measurement of the damages (Shyama Kishore Bal v. Kishore Talkies; Shri Kashi Math Samsthan
v. Srimad Sudhindra Thirtha Swami; Sri Vyasashrama).50 Lastly, the question of balance of convenience depends on the comparison of convenience and hardship of the parties in whose favour the injunction is to be granted and against whom it is issued (Nanak Chand v. Union of India)51 and the tests to be satisfied are far from stringent in case of an interim mandatory injunction and can be granted only in exceptional cases (Sakthi Durga Builders and Developers v. P.S. Raman).52 The object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the Defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies (Gujarat Bottling Co. Ltd. v. Coca Cola Co.; Hindustan Petroleum Corporation Ltd. v. Sri Sriman Narayan; M.P. Housing Board v. Anil Kumar Khiwani; M. Gurudas v. Rasaranjan; Gujarat Bottling Co. Ltd. v. Coca Cola Co.; Reliance Big Entertainment Pvt. Ltd. v. Percept Limited; Rana Steels v. Ran India Steels Pvt. Ltd.; Canon Kabushiki Kaisha v. B. Mahajan; Info Edge (India) Pvt. Ltd.
v. Shailesh Gupta; Varikoti Nagaraju v. Varikoti Bhadraiah; Syed Mubasheruddin Ahmed v. Syeda Nuzhat Murtuza).53
For the purpose of granting injunction under Order 39 Rule 1 and 2 Code of Civil Procedure, it is to be seen whether the applicant herein, has established a prima facie case and proved irreparable injury that would be caused if the injunction is not granted. If these elements are proved, the balance of convenience would automatically follow (Narmadha Chemicals (P) Ltd. v. Siva Shakthi Soap Works and Siva Shakthi Soap Works v. Narmadha Chemicals (P) Ltd.).54 In granting an interim injunction what the Court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. Further held that the Court should consider as to where the balance of convenience lie and whether it is desirable that the status quo should be maintained (Israil v. Shamser Rahman; Dorab Cawasji Warden v. Coomi Sorab Warden).55
(c) Irreparable Loss.
Mere prima facie case does not entitle the Plaintiff entitled to temporary injunction. The other two factors irreparable loss and balance of convenience must also be
shown by the Plaintiff (Swarn Prabha v. K. Kumar).56 The expression "irreparable loss" means in the event of success in suit, the Plaintiff will not have proper remedy in terms of damages (Sunita Agrawal v. Nirmal).57 In more simple words it means if the temporary injunction is refused, damages shall not be the adequate remedy. It does not refer to mathematical calculation (Jagannathpur S. C. Society v. A. C. Patnaik).58
Unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings (Maharwal Khewaji Trust (Regd.); Faridkot v. Baldev Dass).59 In Order to determine whether the Plaintiff would suffer irreparable injury, the Court has to see whether in the event of success in the suit, the Plaintiff can be adequately compensated by awarding damages (National Insurance Company Ltd. v. Sh. R. Harcharan Singh Bhullar).60 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 a person to obtain a temporary injunction (N.V. Chowdhary v. Hindustan Steel Works Construction Ltd.; Nawab Mir Barkat Ali Khan v. Nawab Zulfiquar Jah Bahdur; Sridhar Panda v. Taramani dibya).61
4. Conduct of a party seeking injunction.
Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an Order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame (Pepsi Co. Inc. v. Hindustan Coca Cola Ltd.).62 Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an Order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction Order already granted in the pending suit or proceedings (Gujarat Bottling Co. Ltd. v. Coca Cola Co.; M.P. Housing Board v. Anil Kumar Khiwani).63
Grant of temporary injunction itself presupposes the Plaintiffs being in possession of the suit schedule land. In such applications, though it is not necessary for the Plaintiffs to establish their title, they have to prove that they are in possession and enjoyment of the suit schedule land. It is only then, that the Court can consider the feasibility of preventing the Defendants from interfering with the possession (State of
A.P. v. Mohd. Jalaluddin Akbar).64 In a suit for bare injunction, what is required to be seen by the Courts is, whether the Plaintiffs have prima facie right to the property and whether they are in lawful possession of the property (Dr. M. Mahalingam v. Smt. Shashikala)65 and if it is so established one would prima facie ask the other side contesting the suit to show how the Plaintiffs were dispossessed (Gangubai Bablya Chaudhary v. Sitaram Bhalchandra Sukhtankar; Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev)?66
Where the Plaintiff himself appears to be guilty of wrongful conduct he is not entitled to the grant of temporary injunction (Prem Singh v. Ceeam Auto Ltd.)67 e.g. a person in wrongful possession of property cannot protect it against true owner by seeking assistance of the Court by way of injunction (Alagi A. Achi v. P. Mudaliar; Dayanand
v. Harpal).68 Also, where a party seeking injunction was sleeping over his rights leaving opposite party to act, it does not deserve injunction for not coming with clean hands (National Airport Authority v. Vijay Datt; Amba Lal Maganlal v. I. N. Mohile).69 The principle that the party seeking injunction should come to Court with clean hands also applies to the party seeking revocation of interim injunction (M/s Gujarat Bottling Co. Ltd. v. Coca Cola Co.).70
5. Cases where injunction granted/refused.
Where the agreement of sale of a house is challenged by the transferor on the ground of fraud, after the transferee has obtained decree for specific performance of contract, the temporary injunction in favour of transferor Plaintiff that the possession be not disturbed cannot be justified (Dalpat Kumar v. Prahlad Singh).71 Where terms of agreement between the manufacturer and retailer are violated by the retailer by changing the structure of his firm without permission of the manufacturer and the manufacturer revoked the agreement and took possession of the retail out let, held, grant of injunction against the manufacturer is not proper (Hindustan Petroleum Corporation Ltd. v. Sri Sriman Narayan).72 Unless there is any special reason to be indicated in clear terms in an interlocutory Order as a rule no provisional admission should be granted and more so into technical courses (U. P. Junior Doctors' Action Committee
v. Dr. B. Sheetal Nandwani; Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai; Gramophone Company of India Limited v. Shanti Films Corporation).73 It is not appropriate for any Court to hold mini trial at the stage of grant of temporary injunction. In a case the property was brought to sale pursuant to decree, sale certificate was produced by respondents. It was held that sale certificate has legal validity unless set aside, possession of respondents cannot be said to be of trespasser, injunction restraining auction sale can be granted (Anand Prasad Agarwalla v. Tarkeshwar Prasad).74
6. Bank Guarantee.
Courts ought not to grant injunction to restrain encashment of Bank guarantees or Letters of Credit. Two exceptions have been mentioned - (i) fraud and (ii) irretrievable damage. If the Plaintiff is prima facie able to establish that the case comes within these two exceptions, temporary injunction under Order 39, Rule 1 Code of Civil Procedure can be issued (Federal Bank Ltd. v. V.M. Jog Engineering Ltd.).75 The Court should normally insist upon enforcement of the bank guarantee and the Court should not interfere with the enforcement of the contract of guarantee unless there is a specific plea of fraud or special equities in favour of the Plaintiff. He must necessarily plead and produce all the necessary evidence in proof of the fraud in execution of the contract of the guarantee, but not the contract either of the original contract or any of the subsequent events that may happen as a ground for fraud (The State Trading Corporation of India Ltd. v. Jainsons Clothing Corporation).76 What is important, in matter of grant of injunction restraining invocation of Bank guarantee is that the Bank guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the Bank
guarantee or the person on whose behalf the guarantee was furnished. The terms of the Bank guarantee are, therefore, extremely material. Since the Bank guarantee represents an independent contract between the bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the Bank guarantee; or else, the invocation itself would be bad (Hindustan Construction Ltd v. State of Bihar).77
If injunction is equitable relief, specific performance of a contract is also nothing else and the Courts in India have legal guidelines statutorily provided in the Code of Civil Procedure (Ganpatlal v. Nandlal Haswani).78
7. Passing Off.
While considering the matter of grant of interim injunction in a passing off action, the cumulative effect of all relevant consideration would have to be assessed. In a passing off action, similarity in the kind of goods and line of trade is an important consideration, it is not necessary that the Defendant should be engaged in the manufacture or trade of the same kind of goods, or engaged in the same line of trade. This is not to say that the fact that there is dissimilarity in the goods/services of the litigating parties is wholly irrelevant. What has to be assessed is whether there is likelihood of confusion. If there is dissimilarity in the kind of goods/services, the possibility of confusion or deception would normally be less (Canon Kabushiki Kaisha
v. B. Mahajan).79 An interlocutory injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure is in the nature of a discretionary relief and that interference should not be made when two Courts have gone against a party. Ad-interim injunction had been held to be rightly refused when the opposite party had claimed and proved prior user on which the passing off action was based (Wander Ltd. v. Antox India P.Ltd.; Heinz Italia v. Dabur India Ltd.).80 Injunction is a relief in equity and is based on equitable principles (N.R. Dongre v. Whirlpool Corpn.; Milmet Oftho Industries v. Allergan Inc.).81
A delay in the matter of seeking an injunction may be a ground for refusing an injunction in certain circumstances. Statutory right based on the provisions of the Trade and Merchandise Marks Act, 1958 is an exclusive right granted by the registration to the holder of a registered trade mark and statutory rights cannot be lost by delay. The effect of a registered mark is so clearly defined in the statute as to be not capable of being misunderstood. Even if there is some delay, the exclusive right cannot be lost. The registered mark cannot be reduced to a nullity. The principles governing other types of injunctions are not to be readily applied here. If it was a case of a similar mark as opposed to the same mark, the concurrent user coupled with delay might be a ground for refusing an injunction. However, when the same mark is being used, in a sense, the public is deceived into purchasing the Defendant's goods on the belief that they are the Plaintiffs goods, so a registered trade mark is a casualty, it is the duty of the Court to protect the registered mark. That is the whole concept of registration. Therefore, an injunction cannot be refused even if there is some delay especially when the mark is the same. To refuse the injunction would tantamount to permit a fraud being practiced on unwary customers. This is a matter of principle on which the Court cannot refuse the injunction (Swaran Singh v. Usha Industries (India); Allianz Aktiengesellschaft Holding v. Allianz Capital & Management Services Ltd.).82 It is no doubt true that the delay in applying for an Order of temporary injunction is one of the
considerations which has to be kept in view, but delay by itself is not sufficient to deprive the registered proprietor of the trade mark of his rights unless it is such as to give rise to a belief that the proprietor of the trade mark has either acquiesced in the user of the mark by the opposite party or has abandoned his rights therein (Nanak Chand v. Kohinoor Chemical Co. Ltd.; Allianz Aktiengesellschaft Holding v. Allianz Capital & Management Services Ltd.).83
Interim injunction should be granted against the alleged infringer only if the equities are in his favour and he moves the Court without delay. Mere registration of the trademark would not establish rights under section 28 of the Act to grant temporary injunction and that the balance of convenience in granting temporary injunction has to be determined by relative amount of damage which is likely to result after the injunction is granted and the Plaintiff ultimately fails (Synthetic Moulders v. Samperit Samperit Aktieregeselshaft; M/s. Veerumal Praveen Kumar v. M/s. Needle Industries (India) Ltd.).84 The question of balance of convenience while dealing with the Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 in case of a passing of action was relevant when prima facie the two parties were on the same level and their rights were about equal (Wearwell Cycle Co. (India) Ltd. v. Wearwell Industries; Ludhiana; M/s. Veerumal Praveen Kumar v. M/s. Needle Industries (India) Ltd.).85 If damages is the measure recoverable at common law would be adequate remedy and the Defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however, strong the Plaintiffs claim appeared to be at that stage (Allianz Aktiengesellschaft Holding v. Allianz Capital & Management Services Ltd.).86
A suit for permanent injunction restraining the infringement of a registered design and for rendition of accounts is maintainable. A person complaining infringement of his design can certainly ask for accounts from the Defendant to show the profits earned by the Defendant by unlawfully using the design as a registered proprietor and the Plaintiff might say that the profit earned by the Defendant would be loss sustained by him which he could claim as damages (Mariappan v. A.R. Safiullah; Mr. Daniel; Jayam Industries).87 For an injunction to be granted the Plaintiff would have to establish the other two aspects along with prima facie case, namely, balance of convenience and irreparable injury to secure an Order of temporary injunction. Where the trade mark registered is of a packed product being sold across the shelf, in such a case, no doubt if the trade mark, name and description are exactly similar, the statutory injunction only requires to be formalised. However, if the product is packed and both the product as well as packing are deceptively similar inasmuch as if the owner of the trade mark contends that it is phonetically and visually similar and if the same is denied by the Defendant/alleged infringer, in such an event the statutory right of registration would no doubt come to the aid of registered proprietor of a trade mark for indicating a triable issue and the act of injuncting by the Court is not merely limited to formalising the statutory injunction. In such a case all the three aspects of the matter would require detailed consideration by the Court before either granting or refusing an Order of injunction (S.M.K.A. Enterprises v. Suchita Industries).88 Court is amply empowered to pass interlocutory Orders including injunction though directing stay of the suit (Karam Singh Trading as Mankoo Engineering Works v. Master Machine & Service; Pfizer Products Inc.
v. Rajesh Chopra).89
8. Patents.
Undoubtedly, patent creates a statutory monopoly preventing the patentee against any unlicensed user of the patent device. Thus, once a violation is established in case of a registered patent, subject of course, to the patent being used, it will not be permissible to contend that the said patentee is not entitled to an injunction (Telemecanique & Controls (I) Limited v. Schneider Electric Industries; Mariappan v. A.R. Safiullah; Mr. Daniel; Jayam Industries).90 If the patent is sufficiently old and has been worked, the Court would for the purpose of temporary injunction, presume the patent to be a valid one and if the patent is more than six years old, and there has been actual user, it would be safe for the Court to proceed upon this presumption (National Research Development Corporation of India; New Delhi v. The Delhi Cloth and General Mills Co Ltd; Telemechanique and Controls (I) Ltd. v. Schneider Electric Industries; J. Mitra and Co. Pvt. Ltd. v. Kesar Medicaments).91 However, in a case where the patent has been obtained by the Plaintiff is a recent one and there is a serious controversy about the validity of grant of the patent itself an interim injunction will not be granted. In other words, Courts will not grant an Order of interim injunction if the Defendant disputes validity of the grant. Any patent which is less than six year old is regarded as a recent one (Mariappan v. A.R. Safiullah; Mr. Daniel; Jayam Industries AND A.R. Safiullah v. Mr. Daniel; Jayam Industries).92
The crux of passing off action lies in a possible deception. The existence of common field of activity is always a relevant consideration. If there is a common field of activity, possibility of deception is very high and if there is no common filed, of activity, possibility is less but it cannot be laid down as a rule of law that there can be no possibility at all. There is no material on record, at least at this stage, to arrive at a conclusion that the Plaintiffs have satisfied the essential pre-requisite of damage. If that be the case and as no passing off arises no injunction can be granted (Aktiebolaget Volvo of Sweden v. Volvo Sheets Limited of Gujarat (India); Star India Private Limited v. Leo Burnett (India) Private Limited).93
9. Anti-suit injunction.
The Courts in India like the Courts in England are Courts of both law and equity. The principles governing grant of injunction - an equitable relief - by a Court will also govern grant of anti-suit injunction which is but a species of injunction. When a Court restrains a party to a suit/proceeding before it from instituting or prosecuting a case in another Court including a foreign Court, it is called anti-suit injunction. It is a common ground that the Courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. This is because Courts of equity exercise jurisdiction in personam. However, having regard to the rule of comity, this power will be exercised sparingly because such an injunction though directed against a person, in effect causes interference in the exercise of jurisdiction by another Court.
The following principles emerge:
(1) In exercising discretion to grant an anti-suit injunction the Court must be satisfied of the following aspects:
(a) the Defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the Court;
(b) if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and
(c) the principle of comity - respect for the Court in which the commencement or continuance of action/proceeding is sought to be restrained - must be borne in mind.
(2) In a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum convenience) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non-convenience (Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd.; (India TV) Independent News Service Pvt Limited v. India Broadcast Live LLC).94
10. Mandatory injunction.
A mandatory injunction is granted only in exceptional cases of extreme hardship (Indrawati v. Balu Ghosh).95 Whether a case is fit to be categorised as rare and exceptional case depends on the facts and circumstances of that case (Vijay v. Mirahul).96 A mandatory injunction should not be granted to do more than what the position was before causing the legal injury to the Plaintiff or the party seeking such injunction. Delay on the part of the Plaintiff in seeking mandatory injunction is fatal and he must come at the earliest possible opportunity. in case of interim mandatory injunction, there should be a strong case for trial in favour of the person seeking injunction, the balance of convenience should also be in favour of the person or persons seeking such relief and there should be a circumstance that if mandatory injunction is not granted there would be irreparable loss or injury to the person seeking the relief, otherwise interim mandatory injunction cannot be granted. The relief sought for by the Appellants has to be considered as per Order XXXIX Rules 1 and 2 of the Code of Civil Procedure.
Interim mandatory injunction can be granted only in circumstances which are clear and prima facie materials clearly justify a finding that status quo has been altered by one of parties to litigation and interests of justice demands status quo ante be restored (Kishore Kumar Khaitan v. Praveen Kumar Singh; Arun Kapur and anr v. Atul Kapur).97 Normally, in case if there is any illegal encroachment or taking over of possession of a property forcibly violating the Orders of the Court, one can seek status quo ante or based on the facts and circumstances only in rarest cases, the Court can grant interim mandatory injunction, for which the requirements of Order XXXIX Rules 1 and 2 are to be satisfied (K.V. Natarajan and N. Lakshmi v. K.V. Anantharaj; Dr. A. Prabhavathi and Rajas Educational Trust).98 For consequence of disobedience of injunction Order See Rule 2A of this Order.
11. Injunction against true owner-No.
No injunction restraining true owners from taking possession should be granted (Faridabad Complex Adm. v. Yadu).99 Issuance of an Order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession and it is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963 and the Plaintiff must have
personal interest in the matter and the interest or right not shown to be in existence, cannot be protected by injunction. Injunction would not be issued against the true owner. An injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against the true owner (Premji Ratnasey Shah v. Union of India; Kadupugotla Varalakshmi v. Vudagiri Venkata Rao).100 The injunction, cannot be issued against the true owner e.g. the Housing Board in whom the land ultimately stood vested and then stood transferred to Municipal Corporation, a tress-passer cannot claim injunction against the owner (Tamil Nadu Housing Board v. A. Viswam (dead) by LR's).101
12. Injunction against public interest-Caution.
Some of the Courts have been granting interim Orders-injunctions and stay Orders in mechanical manner without realising the harm caused to the other side and in some cases to public interest. This is not the correct attitude that "let us make the Order and if the other side is aggrieved, may come and apply for vacating it." Before making the Order the Court must be satisfied that it is a case which calls for such an Order. This obligation cannot be jettisoned and the onus placed upon respondents/Defendants to apply for vacating it. Supreme Court says each of us in this land should wake up to his duty and try to live upto it (Delhi Development Authority v. Skipper Constructions Co. (P.) Ltd.).102 Injunction restraining Karnataka from raising dam at Almatti not granted in view of the fact that there is no infraction of decision of Tribunal and no irreparable injury damage is caused to Andhra Pradesh (State of Andhra Pradesh v. State of Karnataka).103 No ex-parte relief by way of injunction or stay, specially with respect to public projects and schemes or economic policies or schemes should be granted (BALCO Employees Union v. Union of India).104
13. Jurisdiction.
It is well settled that if any Court has no jurisdiction to entertain and try the suit it cannot pass any Order accepting or rejecting the application for temporary injunction as well. In any case it has to return or reject the plaint, as the case may be (Ajmer Kaur v. Punjab State).105 Where the Court has no jurisdiction to try the suit or final relief cannot be granted, the Plaintiff is not entitled to any temporary injunction (Ajmer Kaur v. State of Punjab).106 However, when the revenue Court cannot grant injunction or relief of cancellation of sale deed due to lack of jurisdiction, and Plaintiff is a recorded tenure holder and seeks no declaration of title either directly or indirectly can be given temporary injunction by civil Court (Veermalai v. E. Srinivas).107 The nature of evidence required to be placed before the Court when the Court is considering the grant or refusal of interim relief under Order 39 is different from the nature of evidence required to be placed before the Court when the Court considers the question of jurisdiction. There being difference in the nature of inquiry, it would always be desirable that both questions are not heard together (Datta Devasthan Trust; through its Secretary; Shrikant Digambarrao Kavthekar v. Milind Govind Kshirsagar).108
14. Whether Res Judicata applicable to proceedings under Order 39.
Interlocutory Orders are of various kinds; some like Orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings
before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such Orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these Orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court.
There are other Orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to, lies in the fact that they are not directed to maintaining the status quo or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, Orderly and expeditious disposal of the suit. Though the Code does not contain any express bar to a second application under Rule 1 (Order 39) of the Code of Civil Procedure or a second interlocutory application under any other provision thereof and contains such a bar only in respect of a second suit only, the subject matter whereof has been directly and substantially an issue in a former suit between the same parties (Section 11 of the Code of Civil Procedure), but the Courts have held that the principles of Section 11 of the Code of Civil Procedure are applicable to successive stages of the same proceedings also (Arjun Singh v. Mohinder Kumar; Shri Rakesh Madan v. Rajasthan Financial Corporation).109
15. Remedies against the Order of injunction.
An Order passed under Order 39, Rules 1 and 2 of the Civil Procedure Code, is an appealable Order (Morgan Stanley Mutual Fund v. Piyush Aggarwal; Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai; Union of India v. Era Educational Trust).110 An ex parte Order of ad interim injunction is as much appealable as an Order passed after hearing both the parties (Zila Parishad; Budaun v. Brahma Rishi Sharma; Mangal Achi
v. Asokan; Raj Kumari Suri v. Prem Lal Dhiman; Andhra University v. P.V. Raju; Devasahayam v. Arumukhan; Ramulu v. Ganga Ram; United Club v. Nowgong Football Association of Nowgong; Shyam Behari Singh v. Biseswar Dayal; Sk. Jusa v. Ganpat Dagdu Gire; The Indian Hotels Company Ltd. v. Jiva Institute of Vedic Science).111 Granting of an ex parte ad-interim injunction as well as Order declining to grant ex parte temporary injunction and issuance of a notice will all have to be held as Orders under Rule 39 Rules 1 or 2 and if the first one is appealable, so must be the second (Rajendraprasad R. Singh v. Municipal Corporation of Greater Bombay; Bomi Jal Mistry v. Joint Charity Commissioner of Mumbai).112 It is of course true that, while considering an appeal against an Order of interim injunction, the Appellate Court is slow to interfere with the discretionary Order of the Trial Court, more particularly when the interim Order of the Trial Court remains effective for a comparatively long period (Falcon Tyres Limited; rep. by its Chief Executive Officer v. TVS Srichakara Tyres Limited).113 Appellate Court should not set aside injunction Order passed under Rule 1 or 2 of this Order without discussing material on record and recording a contrary finding (Sree Jain Swetambar v. Phundan Singh).114
The language and the object of Rule 1(r) of Order 43 and the scheme of Rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte Order of injunction. As
soon as an interim injunction is issued and the party affected thereby is apprised of it, he has two remedies- (1) he can either get the ex parte injunction Order discharged or varied or set aside under Rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided for under Order 43, Rule 1 (r), or (2) straightway file an appeal under Order 43, Rule 1 (r) against the injunction Order passed under Rules 1 and 2 of Order
39. Code of Civil Procedure. It is not unusual to provide for alternative remedies. For instance, when an ex parte decree is passed against a person, he has two remedies: either he may go up in appeal against the ex parte decree or he may seek to get the ex parte decree set aside by the same Court (Zila Parishad; Budaun v. Brahma Rishi Sharma; Magotteaux Industries Pvt. Ltd. v. AIA Engineering Ltd.).115 Although every interlocutory Order passed in a civil suit is not subject to review under Article 226 of the Constitution but if it is found from the Order impugned that fundamental principle of law has been violated and further such an Order causes substantial injustice to the party aggrieved, it may be reviewed (Ganga Saran v. Civil Judge; Hapur; Ghaziabad AND Movi Iftakharul Hasan v. Special Judge; Muzaffarnagar; Dinesh Chandra Jaiswal
v. State of Uttaranchal).116 While passing interim Order in exercise of writ jurisdiction under Article 226 of the Constitution, principles laid down for granting interim relief under Order XXXIX of Code of Civil Procedure should be kept in mind. It can neither be issued as a matter of right nor it should be in the form which can be granted only as final relief (Union of India v. Era Educational Trust; Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai).117 Interlocutory Orders passed by Courts subordinate to High Court are open to challenge in and continue to be subject to certiorari and supervisory jurisdiction of High Court (Surya Dev Rai v. Ram Chander Rai; Varalakshmi v. Janakiraman; Ramu; Thangam v. Jayavarma Textiles Private Limited).118
2. Injunction to restrain repetition or continuance of breach.-
(1) In any suit for restraining the Defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the Plaintiff may, at any time after the commencement of the suit, and either before or after Judgment, apply to the Court for a temporary injunction to restrain the Defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by Order grant such injunction, on such terms as to the duration for the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.
ANNOTATIONS
Amendment
The Code of Civil Procedure Amendment Act, 1976 omitted Sub-rule s (3) and (4).
Effective Date of Amendment
The Code of Civil Procedure (Amendment) Act, 1976 wef. 01.02.1977
Prior to Amendment
Prior to Amendment Sub-rules (3) and (4) use to read as under:
(3) In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the
property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release.
(4) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it think fit, and shall pay the balance, if any, to the party entitled thereto.
State Amendments Madhya Pradesh
In Order 39, rule 2, in Sub-rule (2), insert
the following proviso:
"Provided that no such injunction shall be granted:
(a) where no perpetual injunction could be granted in view of the provisions of section 38
(b) to stay, the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismmissal, removable or otherwise termination of service of, or taking charge from, any person appointed to public service and post in connection with the affairs of the State including any employee of any company or Corporation owned or controlled by the State Government; or
(c) to stay, any disciplinary proceeding, pending or intended or, the effect of any adverse entry against any, person appointed to public service and post in connection with the
affairs of the State including any employee of the company owned or controlled by the State Government; or
(d) to restrain any election; or
(e) to restrain any auction intended to be made or, to restrain the effect of any auction made by the Government; or to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished; and any order for injuction granted in contraven- tion of these provisions shall be void." [M.P. Act 29 of 1984].
Uttar Pradesh
In Rule 2, Sub-rule (2), interest the following proviso: "Provided that no such injunction shall be granted:
(a) where no perpetual injunction could be granted in view of the provisions of Section 38 and Section 41 of the Specific Relief Act, 1963 (47 of 1963), or
(b) to stay the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from, any employee including any employee of the Government, or
(c) to stay any disciplinary proceeding pending or intended, or, the effect of any adverse entry, against any employee of the Government, or
(d) to affect the internal management or affairs of any educational institution including a University, or a Society, or
(e) to restrain any election, or
(f) to restrain, any auction intended to be made or, the effect of any auction made, by the Government unless adequate security is furnished, or
(g) to stay the proceedings of the recovery of any dues recoverable as land revenue unless adequate security is furnished, or
(h) in any matter where a reference can be made to the Chancellor of a University under any enactment for the time being inforce;
and any order for injunction granted in contravention of these provisions shall be void".
[U.P. Act 57 of 1976 amended by Notification dated 03.10.1981].
Case Cited
1. Agriculture Produce Market Committee; Gondal v. Girdharbhai Ramjibhai Chhaniyara
MANU/SC/0711/1997: AIR 1997 SC 2674.
2. Chhindwara v. Basori Lal MANU/NA/0065/1939: AIR 1940 Nagpur 203; Om Sai Builders and Constructions v. III Senior Civil Judge; City Civil Court MANU/AP/0860/2004: 2004
(6) ALD 579.
3. Chand Sultana v. Kursheed Begum MANU/AP/0160/1963: AIR 1963 AP 365; S. Radhakrishna Murthy v. K. Narayanadas MANU/AP/0144/1982: AIR 1982 AP 384.
4. Champsey Bhimji & Co. v. Jamna Flour Mills Co. MANU/MH/0046/1914: AIR 1914 Bom 195; M. Kandaswami Chetty v. F. Subramania Chetty ILR 1918 41 Mad. 208 (DB); Dorab Cawasji Warden V. Coomi Sorab Warden MANU/SC/0161/1990: AIR 1990 SC 867.
5. Ram Narayan Aggarwal v. Kerala Kaumudi Pvt. Ltd. MANU/DE/0630/2000: AIR 2000 Delhi 206; Geetanjali Nursing Home (P) Ltd. v. Dr. Dileep Makhija MANU/DE/0805/ 2003: AIR 2004 Delhi 53.
6. Mira Rani Das v. Forman AH; AIR 1971 Assam & Naga 157.
7. National Project Corpn. v. Sadhee & Co.; MANU/PH/0072/1990: AIR 1990 P&H 300
8. P. S. Roy v. Calcutta Tramways; MANU/WB/0061/1986: AIR 1986 Cal 305.
9. Aziz Traders v. Gujarat S. E. B.; MANU/GJ/0047/1986: AIR 1986 Guj 145
10. Indian School of Mines v. Sripat; MANU/BH/0002/1975: AIR 1975 Pat 11
11. State v. Ganji; MANU/KA/0136/1986: AIR 1986 Kant 94
12. Jaganath v. Sukhdeo; MANU/MH/0117/1967: AIR 1967 Bom 317
13. B. C. Reddy v. B. P. Veerappa (dead) by LR's; MANU/SC/0578/1997: AIR 1997 SC 2311 : 1997 (10) SCC 673
14. J.M. Biswas v. N.K. Bhattacharjee; MANU/SC/0243/2002: AIR 2002 SC 1649.
15. State of Bihar v. Rani Sonabati Kumari AIR 1954 Pat 513; Kapildeo Upadhya v.
Raghunath Pandey MANU/BH/0043/1978: AIR 1978 Pat 212.
16. Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal MANU/SC/0056/1961: AIR 1962 SC 527; India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd. MANU/SC/1253/2007: AIR 2007 SC 1376; Tanusree Basu v. Ishani Prasad Basu AIR MANU/SC/7286/2008: 2008 SC 1909; Rikhabsao Nathusao Jain v. Corpn. of the City of Nagpur MANU/SC/8177/2008: (2009) 1 SCC 240.
17. Vidya Charan Shukla v. Tamil Nadu Olympic Association MANU/TN/0059/1991: AIR 1991 Mad 323.
18. Varadacharyulu v. Narasimhacharyulu MANU/TN/0338/1925: AIR 1926 Mad 258;
Ayyaperumal Nadar v. Mulhuswami Pillai MANU/TN/0269/1927: AIR 1927 Mad 687;.
19. Maharashtra Jeevan Pradhikaran v. Lark Construction Pvt. Ltd. MANU/MH/1036/2004: AIR 2005 Bom 161.
20. Hemant Kumar v. Ayodhya Prasad; AIR 1957 Madh B 95 .
21. Zila Parishad; Budaun v. Brahma Rishi Sharma MANU/UP/0057/1970: AIR 1970 All 376.
COMMENTS
Order XXXIX, Rule 2, Code of Civil Procedure postulates that "in any suit for restraining the Defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the Plaintiff may, at any time after the commencement of the suit, and either before or after Judgment, apply to the Court for a temporary injunction to restrain the Defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right (Agriculture Produce Market Committee; Gondal v. Girdharbhai Ramjibhai Chhaniyara).1 The powers conferred by Section 493, Code of Civil Procedure, 1882 (corresponding to Order 39, Rule 2) are exercisable only when the Court is set in motion by a party who is aggrieved (Chhindwara v. Basori Lal; Om Sai Builders and Constructions v. III Senior Civil Judge; City Civil Court).2
Temporary injunction under Rule 1 can be sought in any kind of suit for any kind of prohibitory or mandatory injunction while the temporary injunction under Rule 2 can only be sought in a suit in which relief is for restraining the Defendant from committing breach of contract or any other legal injury, and generally only prohibitory temporary injunction can be sought under this rule. The Plaintiff could succeed in getting an interlocutory injunction only when a prime facie case is made out, in other words, when on the evidence as it remains there is a probability that the Plaintiff is entitled to relief. Unless this condition is satisfied, Order 39, Rule 2 Code of Civil Procedure would not be successfully invoked. It would be wrong for a Court to grant an injunction merely on the ground that the Plaintiff had filed the suit claiming relief (Chand Sultana v. Kursheed Begum; S. Radhakrishna Murthy
v. K. Narayanadas).3 Having regard to the very clear wording of Order 39, Rule 2 this court has the power to make a mandatory Order on an interlocutory application. If the court had no such power, it would be in the power of a party to cause insufferable inconvenience and grave injury to another during the whole time that would elapse between the commission of the wrongful act and the hearing of the suit filed to remedy the wrong and redress the injury. Court's in India have the power by virtue of Order 39 Rule 2 of the Code of Civil Procedure to issue temporary injunction in a mandatory form (Champsey Bhimji & Co. v. Jamna Flour Mills Co.; M. Kandaswami Chetty v. F. Subramania Chetty; Dorab Cawasji Warden
V. Coomi Sorab Warden).4 Ouster from possession of an immovable property has been recognised as causing irreparable loss and injury to the party concerned. The injury or loss referred to in Order 39 Rule.2 Code of Civil Procedure means any invasion or infraction of a legal right giving rise to the right of action at the instance of the party claiming that right. Balance of convenience means comparative mischief or inconvenience that may be caused to the either party in the event of refusal or grant of injunction (Ram Narayan Aggarwal v. Kerala Kaumudi Pvt. Ltd.; Geetanjali Nursing Home (P) Ltd. v. Dr. Dileep Makhija).5
Under Order 39, Rule 2, Code of Civil Procedure the execution of a lawful and subsisting decree could not be restrained by a temporary injunction, since its execution cannot be regarded as an "injury" within the meaning of Order 39, Rule 2, Code of Civil Procedure (Mira Rani Das v. Forman).6
Injunctions not to be granted
The Court should be slow in granting injunction restraining enforcement of Bank guarantees except in cases of fraud (National Project Corpn. v. Sadhee & Co.).7 Court should not grant temporary injunction suspending development project which are being executed for the welfare or in the interest of the public (P. S. Roy v. Calcutta Tramways).8 Similarly, in the matters of public undertakings and State the Court must consider the larger interest of the public should not be interfered before granting temporary injunction against them (Aziz Traders v. Gujarat S. E. B.).9 Order granting mandatory injunction to admit a student in school during pendency of suit cannot be said to be a just Order (Indian School of Mines v. Sripat).10 Temporary injunctions restraining lawful authorities from doing their duties like search and inspection should not be granted (State v. Ganji).11 Where an adult unmarried girl is going to marry someone, injunction should not be granted on the basis of contract to marry with the Plaintiff nor any injunction against elected representatives should be granted restraining them from taking oath or discharging their functions (Jaganath v. Sukhdeo).12 No injunction should be granted against true owner of the property in suit restraining him from enjoying its peaceful possession (B. C. Reddy v. B. P. Veerappa (dead) by LR's).13 Held, result of litigation will neither benefit any of parties nor will serve interest of Union and continuing litigation will be like flogging dead horse. Plea not tenable that successive election held during pendency of litigation were invalid since party was not permitted to participate. Quashing of such elections and directions to hold fresh elections under supervision of Court is contrary to democratic functioning of employee's Union (J.M. Biswas v. N.K. Bhattacharjee).14 Reading the aforesaid provision Rule 2
(3) it is clear that it is discretionary for the court either to attach the land or to direct the person concerned to be detained in civil prison (State of Bihar v. Rani Sonabati Kumari; Kapildeo Upadhya v. Raghunath Pandey).15
Power under Order 39 vis-a-vis Section 151
It is now a well-settled principle of law that Order 39 Rule 1 of the Code of Civil Procedure (Code) is not the sole repository of the power of the court to grant injunction. Section 151 of the Code confers power upon the court to grant injunction if the matter is not covered by Rules 1 and 2 of Order 39 of the Code (Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal; India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd.; Tanusree Basu v. Ishani Prasad Basu; Rikhabsao Nathusao Jain
v. Corpn. of the City of Nagpur).16 Yet, a departure from the rule that any Order or direction in the nature of injunction should be directed to the parties to the suit or litigation before it cannot easily be allowed (Vidya Charan Shukla v. Tamil Nadu Olympic Association).17 If an injunction cannot be passed under the provisions of Order 39, Rule 1 or Rule 2, it is not permissible to seek the power under Section 151 of the Code in Order to justify such an Order (Varadacharyulu v. Narasimhacharyulu; Ayyaperumal Nadar v. Mulhuswami Pillai).18 Some times, interim Orders are necessary to protect the interest of the parties till rights of parties are adjudicated upon. The Courts can grant interim injunction in exercise of inherent powers under Section 151 of the Civil Procedure Code, if no specific provision under the Code or Act is available. However, while granting such interim Order it should always be borne in mind that it is granted in the aid of final relief. If final relief is not available to the person seeking interim relief, then no interim relief can be granted in his favour (Maharashtra Jeevan Pradhikaran v. Lark Construction Pvt. Ltd.).19
No Order of injunction can be made under Order 39, Rule 1 or Rule 2 or under Section 151, Code of Civil Procedure to restrain a decree-holder from executing a decree in his favour so long as it stands, and that merely because the Plaintiff institutes a suit for a declaration that the decree is not binding on him and that he hopes to succeed in the suit, it cannot be held that the execution of the decree would amount to committing an injury (Hemant Kumar v. Ayodhya Prasad).20
No appeal lies against an Order under Section 151 be it ex parte or otherwise. An ex parte Order of injunction made under Order XXXIX will fall either under Rule 1 or Rule
2. There is no other provision under which such an Order can be made. Rule 1 (r) of Order 43 does not say that an appeal shall lie from a final Order under Rule 1 or Rule 2 of Order XXXIX. No adequate reason is shown for interpolating the word "final" before "Order" in Rule l(r). Courts do not ordinarily make additions in enactments. That is a legislative function (Zila Parishad; Budaun v. Brahma Rishi Sharma).21
2A. Consequence of disobedience or breach of injunction.-
(1) In the case of disobedience of any injunction granted or other Order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the Order made, of the Court granting the injunction or making the Order, or any Court to which the suit or proceeding is transferred, may Order the property of the person guilty of such disobedience or breach to be attached, and may also Order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.
ANNOTATIONS
Amendment
The Code of Civil Procedure Amendment Act 1976 inserted Rule 2A.
Effective Date of Amendment
The Code of Civil Procedure (Amendment) Act, 1976 wef. 01.02.1977
High Court Amendment Patna
In Order XXXIX, in rule 2A, in Sub-rule (1),
after the words and figure "Rule 2" and before the words "or breach of", insert the words and figures "or Section 151".
[Vide Notification No. 243/R, dated 03.08. 1979.]
Case Cited
1. The Municipal Corporation of Greater Mumbai v. Shri Bhikanlal Nanakchand Sharma
MANU/MH/1031/2006: (2007) 109 BOM LR 430.
2. Sita Ram v. Ganesh, MANU/UP/0158/1973: AIR 1973 All 449
3. Food Corporation of India v. Sukh Deo Prasad MANU/SC/0444/2009: 2009 (4) SCALE 318.
4. Rachhapal Singh v. Gurudarshan, MANU/PH/0144/1985: AIR 1985 P&H 299
5. State v. Sonabati, MANU/SC/0002/1960: AIR 1961 SC 221
6. Giridhari Dhir v. Golaka Chandra Nayak MANU/OR/0045/1987: AIR 1987 Ori 171.
7. State of Bihar v. Rani Sonabati Kumari MANU/SC/0002/1960: AIR 1961 SC 221, Delhi Development Authority v. Skipper Construction Company (P) Ltd. MANU/SC/0497/ 1996: AIR 1996 SC 2005, Vidya Charan Shukla v. Tamil Nadu Olympic Association MANU/TN/0059/1991: AIR 1991 Mad 323.
8. Sujit Pal v. Prabir Kumar Sun MANU/WB/0038/1986: AIR 1986 Cal 220, Vidya Charan Shukla V. Tamil Nadu Olympic Association MANU/TN/0059/1991: AIR 1991 Mad 323.
9. Vidya Charan Shukla v. Tamil Nadu Olympic Association MANU/TN/0059/1991: AIR 1991 Mad 323.
10. T. M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd., MANU/SC/0280/1997: AIR 1997 SC 1240 : 1997 (3) SCC 443
11. Muniyappa H. v. M. Subbarayan MANU/KA/8574/2006: ILR 2007 KAR 3068.
12. Choorakadan v. Antony MANU/KE/0010/1991: AIR 1991 Ker 44.
13. High Court of Judicature at Allahabad v. Raj Kishore, MANU/SC/0269/1997: AIR 1997 SC 1186 : 1997 (3) SCC 11
14. Samee Khan v. Bindu Khan MANU/SC/0564/1998: AIR 1998 SC 2765.
15. Vidya Charan Shukla v. Khubchand Baghel MANU/SC/0120/1963: AIR 1964 SC 1099,
Samee Khan v. Bindu Khan MANU/SC/0564/1998: AIR 1998 SC 276.
16. Gyan Chand Jain v. XIIIth Additional District and Sessions Judge, Agra AIR 1998 All 228, Rampyaribai v.. Niladevi MANU/MH/0431/2007: 2007 (4) Mh LJ 213.
17. Mahadeo Dhondu Budhe v. Sayyad Mahamud Sayyad Mohamad Nazir MANU/MH/ 0012/1992: AIR 1992 Bom 51.
18. Bholeshankar Awas Gruha Nirman Sahakari Sanstha Maryadit v. Omprakash MANU/ MH/0976/2008: 2008 (5) Mh LJ 952.
SYNOPSIS
1. Scope 1714
2. Which Court can pass Orders under the rule 1716
1. Scope.
3. Attachment and arrest in disobedience of injunction 1717
Rule 2-A of Order 39 was introduced in the Code of Civil Procedure by amending Act No. 104 of 1976 with effect from 1st February, 1977. Prior to the introduction of Rule 2-A the Trial Court before whom a suit is pending had no jurisdiction to punish the Defendant if the interim Order of injunction passed by it under Rules 1 or 2 was not obeyed by the Defendant.
Bare perusal of Rule 2-A of Order 39 would show that it is attracted only in case of disobedience of an Order of injunction of any other Order made under Rule 1 or Rule 2 or breach of the terms on which the injunction was granted or Order was made. Rule 2-A of Order 39 of the Code of Civil Procedure does not apply to the final Order decree of permanent injunction passed by the Court at the conclusion of the hearing of the suit. It is also doubtful whether Rule 2-A would apply for breach of an undertaking given to the Court. Action under Order 39, Rule 2-A can be taken only where there has been a breach of an Order of interim injunction passed under Order 39 Rule 1 or 2 of the Code of Civil Procedure (The Municipal Corporation of Greater Mumbai v. Shri Bhikanlal Nanakchand Sharma).1
The object of Rule 2A is not to punish a person for disobedience of injunction Order but to ensure the enforcement and compel the party to act according to injunction (Sita Ram v. Ganesh).2 An application under Order 39, Rule 2A of the Code is maintainable only when there is disobedience of any 'injunction' granted or other Order made under Rule 1 or Rule 2 of Order 39 or breach of any of the terms on which the injunction was granted or the Order was made (Food Corporation of India v. Sukh Deo Prasad).3 As soon as the party concerned starts complying with the injunction Order or such Order is vacated, the party cannot be held guilty of disobedience and must be released if in detention in civil prison (Rachhapal Singh v. Gurudarshan).4 Action need not be taken under this rule for every disobedience. It is only when the party against whom temporary injunction is issued, wilfully disobeys it the action is needed. Wilful disobedience means when the party had intentionally and knowingly disobeyed the Order (State v. Sonabati).5 Where the Order itself is vague and ambiguous, the party cannot be punished for disobedience. If the wilful disobedience of clear injunction is proved even the agent of the Defendant, even if he was not party can be sent to civil imprisonment.
Two disciplinary actions have been provided under Order 39, Rule 2-A of the Code, namely, attachment of property or detention. The two modes of punishment are the alternatives which can be awarded to the contemnor according to the discretion of the Court. At the stage of making of the application, therefore, it is very difficult for the complainant to know the mind of the Court as to what kind of punishment would be awarded to the contemnor. The attachment of the property of the guilty person is effected to ensure award of compensation whereas his detention intends to check the infringement and disobedience as such and punishes the person committing the disobedience or breach of the Order of injunction (Giridhari Dhir v. Golaka Chandra Nayak).6 The proceedings under Order XXXIX, Rule 2A, Code of Civil Procedure is separate and independent. Whatever be the Orders passed in Order XXXIX, Rule 2A petition, it may not have any bearing on the decision of the case. Even if the petition under Order XXXIX, Rule 2A was considered and disposed of along with the suit, the Order passed thereunder would be distinct and separate and an appeal would lie under Order XLIII, Rule1(r) of the Code of Civil Procedure.
Though undoubtedly proceedings under Order 39, Rule 2(3) of the Code of Civil Procedure (which is somewhat similar to the amended provision of Order 39, Rule 2A) have a punitive aspect, as is evident from the contemnor being liable to be Ordered to be detained in civil prison, they are in substance designed to effect the enforcement of or to execute the Order (State of Bihar v. Rani Sonabati Kumari ; Delhi Development Authority v. Skipper Construction Company (P) Ltd. ; Vidya Charan Shukla v. Tamil Nadu Olympic Association).7 No technicality can prevent the Court from doing justice in exercise of its inherent power. Order 39, Rule 2-A lays down a punitive measure for the purpose of compelling a party to comply with the Order of injunction. The process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down in Order 39 Rule 2A is incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an Order of injunction. In such a case the Court is not powerless to grant relief to the aggrieved party in exercise of its inherent power (Sujit Pal v. Prabir Kumar Sun; Vidya Charan Shukla v. Tamil Nadu Olympic Association)8 and if that is also ignored for a moment, this Court's power as a Court of Record and a Court of Special jurisdiction
is preserved under Articles 215 and 225 of the Constitution of India (Vidya Charan Shukla v. Tamil Nadu Olympic Association).9
Where the Plaintiff asked for temporary injunction and an ad interim injunction was granted, Defendants came forward objecting to the grant of injunction and jurisdiction of the Court but the Court overruled the objection as to jurisdiction and made the interim injunction absolute and several other interim Orders were passed during the pendency of appeal which was disobeyed by the Defendants, it was held that the Defendants cannot escape the consequences of their disobedience and violation of the interim injunction committed by them prior to the decision of the Appellate Court on the question of jurisdiction (T. M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd.).10
Proof
While dealing with the proceeding under Order 39 Rule 2(A) of Code of civil Procedure, there should be clear proof that the Order of injunction to be obeyed was clear and was not ambiguous. Essentially, the party complaining of disobedience to such an Order must establish it with acceptable proof. To do so, ascertainment of factual position as it stood on the date of issuance of Order of injunction and subsequent change in factual position is material. When the Order of injunction requires and restraints the Defendant from changing the nature of the property and if violation of such direction is alleged by the applicant the, necessarily enquiry should be held to ascertain whether the alleged change in the property is brought about subsequent to the Order of injunction and said acts are attributable only to the party against whom such allegation is made. Therefore, there has to e separate enquiry when such application is moved (Muniyappa H. v. M. Subbarayan).11 The application under Order XXXIX, Rule 2A, Code of Civil Procedure is in the nature of criminal proceedings. Therefore, the burden is on the petitioner-Plaintiff to prove that the Defendant had violated the Order of injunction (Choorakadan v. Antony).12
2. Which Court can pass Orders under the rule
The rule on its express language enables the presiding Judge of the Court that passed injunction Order to entertain complaint regarding breach of his Order. The presiding Judge or his successor-in-office is enabled to entertain such a complaint. In such cases where the subordinate Court consists of only one presiding Judge the applications under Order XXXIX, Rule 2A, Code of Civil Procedure will have to be filed in the same Court and would go to the same Judge or his successor-in-office. Such is not the case with the High Court. Under Article 216 of the Constitution of India, plurality of Judges appointed to the High Court collectively constitute the High Court. Hence, analogy of Order XXXIX Rule 2A, Code of Civil Procedure cannot be pressed in service while judging the validity of the impugned rule on the touchstone of Article 215 of the Constitution of India (High Court of Judicature at Allahabad v. Raj Kishore).13 It can be noted from the "Objects and Reasons" for the aforesaid amendment in 1976 (addition of Rule 2 A and deletion of Sub-rule (3) of rule 2) that it is intended to make the provision applicable also to cases where injunction Orders passed under Rule 1 are disobeyed, and for empowering a transferee Court also to exercise such powers. Otherwise the deleted provision is the same as the present Sub-rule 2 A (1) (Samee Khan v. Bindu Khan).14
3. Attachment and arrest in disobedience of injunction.
Expression "and may also" in Rule 2-A cannot be interpreted in the context as denoting to a step which is permissible only as additional to attachment of property of the opposite party. If the person who defies the injunction Order has no property at all, the Court become powerless to deal with such disobedient party. To avoid such anomalous situation, above expression can be interpreted only to mean that it is open to the Court to attach the property of the disobeying party and at the same time it may Order him to be detained in civil prison. Both steps can be resorted to either simultaneously or separately (Vidya Charan Shukla v. Khubchand Baghel ; Samee Khan v. Bindu Khan).15
Since a punishment is imposed and a person is sent to jail, the principle on which these proceedings are decided are entirely different. Here, the principle of criminal law will apply and the Plaintiff will have to establish beyond any shadow of doubt that the Defendants had committed disobedience or breach of the injunction Order even though he had full knowledge of the same. The burden of proving its case in such cases lies entirely on the Plaintiff. The principle on which a Civil suit is decided are different as here decision on the issues arising out of pleadings is taken on the basis of preponderance of evidence. Therefore, a common Judgment and Order deciding the main suit as well as application under Order 39, Rule 2-A, Civil Procedure Code will not be proper (Gyan Chand Jain v. XIIIth Additional District and Sessions Judge, Agra, Rampyaribai v.. Niladevi).16
If the attachment continues for one year and even thereafter if it is found that the party is disobeying or committing breach or continuing any breach of the Order, then the attached property can be sold. The stage of sale can come only after on year of the Order of attachment and if the disobedience continues (Mahadeo Dhondu Budhe
v. Sayyad Mahamud Sayyad Mohamad Nazir).17 Section 104(1)(h) of the Code Civil Procedure does not at all provide any appeal rejecting application under Rule 2-A of Order 39 nor there is any other provision providing for such an appeal against Order rejecting application under Rule 2-A of Order 39. There is thus clearcut deletion of the provision for appeal against Order under Rule 2-A of Order 39 and, therefore, there is no justification for interpreting that appeal should be read to have been provided even against an Order of rejection of application under Rule 2-A of Order 39. It is rightly said "Judges not only listen to voices of Legislature but listen to what Legislation does not say" (Bholeshankar Awas Gruha Nirman Sahakari Sanstha Maryadit v. Omprakash).18
3. 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 given 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 on 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.
ANNOTATIONS
Amendment
The Code of Civil Procedure Amendment Act 1976 inserted proviso to Rule 3.
Effective Date of Amendment
The Code of Civil Procedure (Amendment) Act, 1976 wef. 01.02.1977
High Court Amendment Andhra Pradesh
In Order XXXIX, after rule 3, insert the
following rules, namely:
"3 A. In any case where a temporary injunction is granted, the Court may, at the time of the order, or at any time
during the pendency of the injunction, call upon the applicant to furnish security for the amount of damages that the Court may determine as payable by the party obtaining the injunction to the other party as compensation for any injury or loss that may be sustained by the letter by reason of the injunction.
3B. The Court shall, on application made after the disposal of the suit, determine the amount payable under rule 3A and make an order awarding it to the applicant."
Case Cited
1. Andhra Pradesh State Electricity Board; Hyderabad v. M/s. Andhra Cements Ltd.; Dachepalli MANU/AP/0059/1991: AIR 1991 AP 350; Zila Parishad; Budaun v. Brahma Rishi Sharma AIR 1970 All 376; Sri Suryanarayana Papers and Boards Pvt. Ltd. v. Padmakumar 1995 (2) CTC 332; K. Chandran v. Smt. Siriya Pushpam MANU/TN/0390/2009.
2. Nazir Ahmed v. Emperor AIR 1936 PC 253; Shiv Kumar Chadha v. Municipal Corporation of Delhi MANU/SC/0522/1993: (1993) 3 SCC 161.
3. Road Flying Carrier v. G. E. C. Ltd.; MANU/UP/0044/1990: AIR 1990 All 134.
4. E.M. Ahmu v. P.S. Ramalingam; MANU/KE/0009/1993: AIR 1993 Ker 33.
5. Model Press (P) Ltd. v. Delhi Municipal Corporation; MANU/DE/0159/1977: AIR 1978 Delhi 44.
6. Aldas Valezia Tereza Mergulhao v. Joaquim Jeronimo De Almeida; MANU/MH/0220/ 2006: 2006 (3) Mh LJ 391.
7. A. Venkatasubbiah Naidu v. S. Chellappan; MANU/SC/0581/2000: AIR 2000 SC 3032 : 2000 (7) SCC 695.
8. Industrial Credit & Development Syndicate v. B. Suryanarayana Bhat MANU/KA/0137/ 1986: AIR 1986 Kant 98.
9. Naba Kishore Das v. Umakanta Mohapatra MANU/OR/0063/1985: AIR 1985 Ori 222.
10. Lakhai v. Ram Niwas MANU/UP/0206/1987; H. Bevis Co. v. Ram Behari MANU/UP/ 0287/1950; Khusi Lal v. Gorelal MANU/MP/0014/1986; Hamumaga v. Anjanappa 1973
(2) Mys. LJ 96; Madhava Rao v. N. Sankara Reddi 1983 (1) Alt 340; Iqbal Singh v. Chanan Singh MANU/PH/0230/1965; Nisha Raj v. Pratap K. Kaula; MANU/DE/0910/ 1994: 57 ( 1995 ) DLT 490; Magotteaux Industries Pvt. Ltd. v. AIA Engineering Ltd. MANU/DE/1615/2008: 155 (2008) DLT 73.
11. Ashim Ranjan Das v. Sm. Bimla Ghosh MANU/WB/0003/1992: AIR 1992 Cal 44.
12. Industrial C. D. Syndicate v. Suryanarayana Bhat; MANU/KA/0137/1986: AIR 1986 Kant 98.
13. Aparajita v. Anil Mukherjee; AIR 1990 Gau 73.
14. Subal Kumar Dey v. Purna Chandra Giri MANU/OR/0057/1989: AIR 1989 Ori 214.
15. R.I.C. Syndicate Ltd. v. A. Vairaprakasam MANU/TN/0219/1989: AIR 1989 Mad 139; Sri Suryanarayana Papers and Boards Pvt. Ltd. v. Padmakumar 1995 (2) CTC 332; Morgan Stanley Mutual Fund v. Kartick Das MANU/SC/0553/1994: (1994) 4 SCC 225; Shiv Kumar Chadha v. Municipal Corporation of Delhi MANU/SC/0522/1993 ( 1993 ) 3 SCC 161; K. Chandran v. Smt. Siriya Pushpam MANU/TN/0390/2009; S.A. Rajendran Poosari
v. The Commissioner; Hindu Religious and Charitable Endowment Department; The Joint Commissioner; Hindu Religious and Charitable Endowment Department; The Executive Officer and S. Sethulingam Poosari MANU/TN/0067/2009.
16. K. Chandran v. Smt. Siriya Pushpam MANU/TN/0390/2009.
17. Sm. Muktakesi Dawn v. Haripada Mazumdar MANU/WB/0005/1988: AIR 1988 Cal 25.
COMMENTS
Power to grant injunction is an extra-ordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of a particular case. The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the Order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the Court shall; before grant of an injunction; direct notice of the application to be given to the opposite party; except where it appears that object of granting injunction itself would be defeated by delay (Andhra Pradesh State Electricity Board; Hyderabad v. M/s. Andhra Cements Ltd.; Dachepalli; Zila Parishad; Budaun v. Brahma Rishi Sharma; Sri Suryanarayana Papers and Boards Pvt. Ltd. v. Padmakumar ; K. Chandran v. Smt. Siriya Pushpam).1 The Parliament has prescribed a particular procedure for passing of an Order of injunction without notice to the other side; under exceptional circumstances. Such ex parte Orders have far reaching effect; as such a condition has been imposed that Court must record reasons before passing such Order. If it is held that the compliance of the proviso aforesaid is optional and not obligatory; then the introduction of the proviso by the Parliament shall be a futile exercise and part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code; attracts the principle; that if a statute requires a thing to be done in a particular manner; it should be done in that manner or not at all (Nazir Ahmed v. Emperor; Shiv Kumar Chadha v. Municipal Corporation of Delhi).2 Generally, notice must be issued under this rule before grant of temporary injunction and ex parte injunction should be exception (Road Flying Carrier v. G. E. C. Ltd.).3
The Rule also requires the applicant 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 together with a copy of the affidavit filed in support of the application; a copy of the plaint and copies of documents relied on by the applicant (E.M. Ahmu v. P.S. Ramalingam)4 with a view to get a rapid decision (Model Press
(P) Ltd. v. Delhi Municipal Corporation).5 However; merely because Order 39; Rule 3 of Civil Procedure Code provides that copies of documents relied by the Plaintiff are required to be served upon the Defendant when ex parte injunction is granted; that itself will not absolve the Plaintiff from his obligation to furnish copies of the documents to be served upon the Defendant along with the summons (Aldas Valezia Tereza Mergulhao v. Joaquim Jeronimo De Almeida).6
The Supreme Court has held that a party securing ex-parte interim injunction cannot take advantage of it without sending copy of the Order to opposite party and filing an affidavit stating that the copy is delivered (A. Venkatasubbiah Naidu v. S. Chellappan).7 Rule 3 of Order 39 of the Code of Civil Procedure is a mandatory provision. The non-compliance with the mandatory provisions contained in Rule 3 of Order 39 is a very grave error; which needs to be viewed seriously (Industrial Credit & Development Syndicate v. B. Suryanarayana Bhat).8 However; the view of the Orissa High Court is that neither the language of the Code nor the spirit of the law warrants an inference that the ad interim Order of injunction passed by the Court shall be rendered as non est if the party in whose favour the injunction was made fails to comply with the provisions of Rule 3 of Order 39 of the Code. The ad interim Order of injunction passed ex parte in the absence of compliance of the provisions of Rule 3 may have other consequences but the ad interim Order of injunction cannot be taken to be non-existent on account of the alleged non-compliance. All these objections are available to be made and dealt with at the final hearing on the injunction matter (Naba Kishore Das v. Umakanta Mohapatra).9 No appeal is provided in Order 43 Rule 1 (r) Civil Procedure Code against an Order under Order 39 Rule 3 Code of Civil Procedure (Lakhai v. Ram Niwas ; H. Bevis Co. v. Ram Behari ; Khusi Lal v. Gorelal ; Hamumaga v. Anjanappa ; Madhava Rao v. N. Sankara Reddi ; Iqbal Singh v. Chanan Singh ; Nisha Raj v. Pratap K. Kaula; Magotteaux Industries Pvt. Ltd. v. AIA Engineering Ltd.).10
Recording of reasons
The provision contained in Rule 3 of Order 39; Code of Civil Procedure should not be mechanically followed. The legislative intent and purpose must be noticed (Ashim Ranjan Das v. Sm. Bimla Ghosh).11 The power to issue interim injunction is a power of great responsibility and it should not be exercised in haste. Non-compliance of Rule 3 is a serious error (Industrial C. D. Syndicate v. Suryanarayana Bhat).12 Where the case is of exceptional nature and ex parte temporary injunction is necessary the Court must give detailed reasons therefore (Aparajita v. Anil Mukherjee).13 The Order must disclose the harm that would be caused if no Order is passed before notice. Unless this is meticulously followed; legislative intention in prohibiting an Order being passed without notice would be frustrated (Subal Kumar Dey v. Purna Chandra Giri).14 If an Order of injunction is made without recording the reasons; the injunction would be in violation of the procedure under Order 39; Rule 3 of Code of Civil Procedure (R.I.C. Syndicate Ltd. v. A. Vairaprakasam; Sri Suryanarayana Papers and Boards Pvt. Ltd. v. Padmakumar; Morgan Stanley Mutual Fund v. Kartick Das ; Shiv Kumar Chadha v. Municipal Corporation of Delhi ; K. Chandran v. Smt. Siriya Pushpam; S.A. Rajendran Poosari v. The Commissioner; Hindu Religious and Charitable Endowment Department; The Joint Commissioner; Hindu Religious and Charitable Endowment Department; The Executive Officer and S. Sethulingam Poosari).15 Absence of reasons being found cited in the Order would prove fatal to the very Order itself (K. Chandran
O 39, R, 3A] Order 39 1721
v. Smt. Siriya Pushpam).16 Such recording of reasons would operate as a check against a too easy granting of ex parte injunction and may inspire confidence and disarm objection. And since an appeal lies against such ex parte Order of injunction; such record of reasons would go a very long way to help the appellate Court to ascertain as to whether the discretion granted under the Rule to grant ex parte injunction has been properly exercised.
As per the Calcutta High Court the mandate in the Proviso to Rule 3 to record reasons is not that mandatory to warrant reversal of an Order solely on the ground of omission to record reasons. If there are materials on record to show that there were good reasons to pass an ex parte injunction Order; the Order cannot be set at naught solely on the ground that the Court; while making the Order; did not record the reasons for proceeding ex parte (Sm. Muktakesi Dawn v. Haripada Mazumdar).17
3A. Court to dispose of application for injunction within 30 days.-
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.
ANNOTATIONS
Amendment
The Code of Civil Procedure Amendment Act, 1976 inserted Rule 3A.
Effective Date of Amendment
The Code of Civil Procedure (Amendment) Act, 1976 wef. 01.02.1977
High Court Amendment
Allahabad
In Order XXXIX, omit rule 3A.
[Vide Notification No. 103/IV-L-360, dated 03.02.1981 (w.e.f. 03.10.1981).]
Case Cited
1. Model Press (P) Ltd. v. Delhi Municipal Corporation MANU/DE/0159/1977: AIR 1978 Delhi 44; E.M. Ahmu V. P.S. Ramalingam MANU/KE/0009/1993: AIR 1993 Ker 33.
2. A. Venkatasubbiah Naidu v. S. Chellappan, MANU/SC/0581/2000: AIR 2000 SC 3032
: 2000 (7) SCC 695
3. Uma Maheswari v. S. Peter 2006 ( 5 ) CTC 568, MANU/TN/9807/2006; Shanita Holdings SDN and A. Sekararajasekaran v. Shanita Hotel Trichy Pvt. Limited MANU/TN/0469/2009.
4. A. Venkatasubbiah Naidu v. S. Chellappan MANU/SC/0581/2000: AIR 2000 SC 3032; The Indian Hotels Company Ltd. v. Jiva Institute of Vedic Science MANU/DE/ 0892/2008: 2008 (37) PTC 468 (Del); Ratna Commercial Enterprises Ltd. v.. Vasutech Ltd. AIR 2008 Delhi 99; S.A. Rajendran Poosari v. The Commissioner, Hindu Religious and ors. MANU/TN/0067/2009; N. Lakshmana Doss v. The Secretary to Government of Tamil Nadu Department of Registration MANU/TN/0065/2009; Lakshmi Natesan v. Periasamy MANU/TN/9355/2007; Rt Rev Dr. V. Devasahyam 2002 (1) CTC 458; J. Uma Maheswari v. S. Peter MANU/TN/9807/2006: 2006 (5) CTC 568; Ratna Commercial Enterprises Ltd. v. Vasutech Ltd. MANU/DE/8061/2007: AIR 2008 Delhi 99.
COMMENT
Rule 3-A has been introduced, stating that the Court should endeavor to dispose of such applications within 30 days from the date on which the ex parte injunction was granted. Under this procedure, if an ex parte injunction is granted, then reasons have to be recorded; documents have to be served in the manner provided by the Rule, and also, the application has to be determined and decided within 30 days (Model Press (P) Ltd. v. Delhi Municipal Corporation; E.M. Ahmu V. P.S. Ramalingam).1 The Court is legally obliged to pass final Orders on ex parte injunction within thirty days (A. Venkatasubbiah Naidu v. S. Chellappan).2
In the absence of compliance with mandatory requirements under Order 39 Rule 3-A of the Civil Procedure Code, the injunction was liable to be suspended/set aside. The parties should be given opportunities to agitate their rights before the concerned Court and direction has been issued to the Trial Court to dispose of the application according to law (Uma Maheswari v. S. Peter; Shanita Holdings SDN and A. Sekararajasekaran v. Shanita Hotel Trichy Pvt. Limited).3 In a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the Order remaining in force. In such appeal, if preferred, the Appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3A. In appropriate cases, the Appellate Court, apart from granting or vacating or modifying the Order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final Order passed on the application for temporary injunction, on the date of expiry of 30 days mentioned in the Rule (A. Venkatasubbiah Naidu v. S. Chellappan; The Indian Hotels Company Ltd. v. Jiva Institute of Vedic Science; Ratna Commercial Enterprises Ltd. v.. Vasutech Ltd.; S.A. Rajendran Poosari v. The Commissioner, Hindu Religious and ors.; N. Lakshmana Doss v. The Secretary to Government of Tamil Nadu Department of Registration; Lakshmi Natesan v. Periasamy; Rt Rev Dr. V. Devasahyam; J. Uma Maheswari v. S. Peter; Ratna Commercial Enterprises Ltd. v. Vasutech Ltd.).4
4. Order for injunction may be discharged, varied or set aside.-
Any Order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such Order.
Provided that if in an application for temporary injunction or in any affidavit supporting such application, 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 so to do in the interest of justice :
Provided further that where an Order for injunction has been passed after giving to a party an opportunity of being heard, the Order shall not be discharged, varied or set aside on the application of that party except where such discharge,
variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the Order has caused undue hardship to that party.
ANNOTATIONS
Amendment
The Code of Civil Procedure Amendment Act, 1976 inserted first proviso to Rule 4.
Effective Date of Amendment
The Code of Civil Procedure (Amendment) Act, 1976 wef. 01.02.1977
State Amendments Madhya Pradesh
In Rule 4:
(i) after the words "by the Court", inserted the words "for reasons to be recorded, either on its own motion or"; and
(ii) at the end, add the following proviso:
Case Cited
"Provided also that if at any stage of the suit it appears to the Court that the party in whose favour the order of injunction exists is delaying the proceedings or is otherwise abusing the process of Court, it shall set aside the order of injunction." [M.P. Act 29 of 1984].
Uttar Pradesh
Same as that of Madhya Pradesh except for the word "delaying" substitute "dilating" in the proviso.
[U.P. Act 57 of 1976].
1. Zila Parishad, Budaun v. Brahma Rishi Sharma MANU/UP/0057/1970: AIR 1970 All 376.
2. Naba Kishore v. Umakant, MANU/OR/0063/1985: AIR 1985 Ori 222.
3. Ashim Ganguly v. Indian Oxygen Ltd. MANU/WB/0025/1989: AIR 1989 Cal 150.
4. Mohd. Khalil v. Parasnath, MANU/BH/0047/1964: AIR 1964 Pat 165
5. Rameshwar Dass v. Brij Bhushan MANU/HP/0008/1988: AIR 1988 HP 31.
6. K. K. Agrawal v. Reserve Bank of India, MANU/WB/0053/1991: AIR 1991 Cal 272
7. Shri Rakesh Madan v. Rajasthan Financial Corporation MANU/DE/0059/2009.
8. Madhavji Jeyram Kotak v. Jay Laxmi Gopalji Surji MANU/MH/1106/2007: 2007 (5) Mh LJ 797.
9. Kunjan Bhaskaran v. Ambika ILR 1977 (2) Kerala 228, E.M. Ahmu v. P.S. Ramalingam
MANU/KE/0009/1993: AIR 1993 Ker 33.
10. Zila Parishad v. B. R. Sharma MANU/UP/0057/1970: AIR 1970 All 376, E.M. Ahmu v. P.S. Ramalingam MANU/KE/0009/1993: AIR 1993 Ker 33; Shanita Holdings SDN and anr.
v. Shanita Hotel Trichy Pvt. Limited.
11. Lakhai v. Ram Niwas MANU/UP/0206/1987: AIR1987All345: AIR 1987 All 345.
12. Malati Santra v. Nanda Dulal Banik MANU/WB/0039/1994: AIR 1994 Cal 229.
13. E.M. Ahmu v. P.S. Ramalingam MANU/KE/0009/1993: AIR 1993 Ker 33.
14. Akmal Ali v. State of Assam, MANU/GH/0019/1984: AIR 1984 Gau 86 (FB), Shanita Holdings SDN and anr. v. Shanita Hotel Trichy Pvt. Limited MANU/TN/0469/2009, S.A. Rajendran Poosari v. The Commissioner, Hindu Religious and Charitable Endowment Department and ors. MANU/TN/0067/2009, N. Lakshmana Doss v. The Secretary to Government of Tamil Nadu Department of Registration MANU/TN/0065/2009.
COMMENTS
Rule 4 gives a right to the Defendant to get an injunction discharged, varied or set aside by moving an application after the grant of an ad interim injunction (Zila Parishad, Budaun
v. Brahma Rishi Sharma).1 It empowers the Court to discharge, vary or set aside the temporary injunction passed against any party during the pendency of suit according to the circumstances of the case which necessitates setting aside or modifying the final Order of injunction and where the Court is satisfied that the Order has caused undue hardship to the party who has suffered the injunction (Naba Kishore v. Umakant)2 and if there are suitable or good reasons to do so (Ashim Ganguly v. Indian Oxygen Ltd.).3
The Rule gives opportunity to Court to rectify the Order after hearing the other party (Mohd. Khalil v. Parasnath).4 The rules of procedure to be followed in the Courts are essentially based on the well recognised rules of fair play and justice and it is impossible to believe that Parliament could have intended to vest the Court with the power to vacate an ex parte injunction on the ground of a false or misleading statement in relation to a material particular having been knowingly made by the party obtaining the same without even hearing such party. The discretion accordingly conferred has to be exercised reasonably and in a judicial manner and in conformity with the principles of fair play and justice. These requirements would be satisfied if, and only if, the party likely to be affected by the exercise of such discretion is, inter alia, given a reasonable opportunity of being heard. Where a party is alleged to have knowingly made a false or misleading statement in relation to a material particular in the application for temporary injunction or in any affidavit supporting such application and the Court is called upon to vacate an ex parte injunction in compliance of the duty cast upon it under the first proviso to Order 39, Rule 4, a reasonable opportunity of being heard is implicit. In fact, it is inconceivable how the power so conferred can be reasonably exercised by any Court without affording a reasonable opportunity of correcting and controverting the allegations of such nature to the party who has obtained the ex parte injunction and without determining the correctness of such allegations on a just appraisal of the materials placed before it by both the parties (Rameshwar Dass v. Brij Bhushan).5
Also, if a party is abusing the temporary injunction after obtaining it and avoiding the hearing on one pretext or other the Court can vacate the ex parte temporary injunction after recording the reasons therefor. The principle contained in rule indirectly applies to even Writ Petitions (K. K. Agrawal v. Reserve Bank of India).6 Against the ex parte Order of ad interim injunction, relief can be obtained by the party aggrieved under Order 39, Rule 4 as well as under Order 43, Rule 1, Code of Civil Procedure.
The legislature has not intended the principle of finality or res judicata in relation to successive stages of the same proceeding to Order under Order 39 of the Code of Civil Procedure. Though Rule 4 deals only with vacation or modification of an interlocutory injunction granted, the purport thereof being interim protection of the property, even if the Court had earlier not found enough reason to grant interim protection, the Court on finding a change in the circumstances or undue hardship having been caused to a party who had been declined the interim injunction earlier, is competent to entertain a second application and to grant such injunction.
The power of the Court, is however, circumscribed by the aforesaid parameters of change in circumstances or undue hardship. Without any change in circumstances or without any case of undue hardship having been made out, the Court is not competent to, in the same facts grant an interlocutory injunction, which was declined earlier. Caution has to be exercised that such power does not lead to filing applications before successive presiding officers. There is no element of wager to be attached to such successive applications. The whole purpose of providing a hierarchy of appeal
is to obviate a human error and provide remedy there against. The purpose is for the Appellate Court to examine the matter brought before it in this perspective. However, when it has not been examined by the first Court as to whether the injunction is to be granted or vacated owing to change in circumstances or undue hardship, requiring the second application to be filed before the Appellate Court only which had last dealt with the matter would amount to doing away with the provisions of appeal (Shri Rakesh Madan v. Rajasthan Financial Corporation).7
Going by the language of Order XXXIX, Rule 4, the application (under Rule 4) cannot be entertained at the instance of a "third-party" to the suit; for the expression employed in Rule 4 is "any party". That expression would necessarily mean that only a party to the suit can invoke the remedy under Order XXXIX, Rule 4 of the Civil Procedure Code. There is marked distinction between the words "any party" and "aggrieved person". The expression "party" is not defined in the Code of Civil Procedure. The meaning of word "party" in the common parlance refers to those by or against whom a legal suit is brought, whether in law or equity, the party Plaintiff or Defendant. On the other hand, an "aggrieved person" is one whose legal right is affected directly and adversely by a decision of the Court (Madhavji Jeyram Kotak v. Jay Laxmi Gopalji Surji).8
Order 43, Rule 1(r) and Rule 4
The Order of injunction, whether interim or final, is an Order falling within Rule 1 or 2 of Order 39 and therefore appealable under Order 43, Rule 1(r). The appealability is not taken away by the circumstance that Rule 4 of Order 39 enables the Order of injunction to be discharged, varied or set aside on application made for that purpose (Kunjan Bhaskaran v. Ambika ; E.M. Ahmu v. P.S. Ramalingam).9 An aggrieved party has two remedies. (1) He can either get the ex parte injunction discharged or varied or set aside under Rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided for under Order 43, Rule 1 (r) or (2) straightway file an appeal under Order 43, Rule 1(r) against the Order passed under Rules 1 and 2 of Order 39 Code of Civil Procedure. It is observed that it is not unusual to provide for alternative remedies. The Order granting ad interim injunction is therefore appealable and the appeal filed before the Court below is therefore maintainable (Zila Parishad v. B. R. Sharma ; E.M. Ahmu
v. P.S. Ramalingam; Shanita Holdings SDN and anr. v. Shanita Hotel Trichy Pvt. Limited).10
Order 43, Rule 1 (r), reveals that an Order under Rule 1, Rule 2, Rule 2 A, Rule 4 or Rule 10 of Order 39 is appealable (Lakhai v. Ram Niwas).11 The refusal of injunction clearly verges on Order 43, Rule 1 Sub-rule (r) and, therefore, to prefer a revision against the Order impinged is impermissible (Malati Santra v. Nanda Dulal Banik).12 The Kerala High Court has held that when once the petition has been finally disposed of the aggrieved party gets a right to file an appeal under Order 43, Rule 1 (r) of the Code and that the Appellate Court on an appeal from an Order granting ad interim injunction is not competent to hear the appeal on merits which would in effect amount to a consideration of the petition on merits (E.M. Ahmu v. P.S. Ramalingam).13
The law on this aspect was discussed by the Tamil Nadu High Court and it held that all ex parte ad interim injunction are appealable under Order 43, Rule 1(r) as well as revisable under Order 39, Rule 4 of the Code. If an Order of ad interim injunction is passed under Order 39, Rule 1 or 2 of the Code of Civil Procedure, whether ex parte or otherwise, it is appealable, as Order 43, Rule 1(r) enables a party aggrieved by any
Order under Order 39, Rule 1 or 2 to prefer on appeal. The Court cannot refuse to entertain an appeal only on the ground that such Orders are temporary or interim or provisional. Similarly, by their very nature ad interim injunctions passed under Order 1 or 2 are always rendered ex parte, Parliament being fully aware of the situation permitted appeals against such Orders. Therefore, an ex parte Order of temporary injunction, whether provisional, temporary or interim, are appealable, if rendered under Order 39, Rule 1 and 2. It was held that Order 43, Rule 1(r) speaks that an appeal shall lie from an "Order" under Rule 1, Rule 2-A, Rule 4 and Rule 10 of Order 39. Therefore, any Order under Rules 1, 2, 2-A and 4 is appealable....
Their Lordships found it difficult to accept the line of reasoning of various High Courts and respectfully differed from the view where it has been held that an ex parte or ad interim Order of injunction under Order 39, Rules 1, 2, 2-A is not appealable as it is temporary or ex parte or non-speaking. And in the same breath the High Courts recognise the right of petition against such Orders under Order 39, Rule 4 of the Code. An ex parte non-speaking temporary or ad-interim Order of injunction is revisable but it is not appealable, although the characteristics of the impugned Order are absolutely the same both in Order 39, Rule 4 as well as in Order 43, Rule 1(r), seems to be irreconciliable. If it is an Order of injunction, it is appealable as well. Similarly, if it is an Order of injunction it is revisable under Order 39, Rule 4. It was further held that any controversy as to whether reasons need be recorded while making an ex parte Order of an interim injunction has been removed by the introduction of Rule 3, which provides that the Court after recording reasons for its satisfaction that the object of granting injunction would be defeated by delay etc. may pass an Order of ex parte ad interim injuctions under Order 1 and 2 of Order 39. It does not stand to scrutiny that an ad interim Order devoid of reasons, rendered in violation of the well-known principles that a judicial Order must contain reasons, and in violation of the mandatory provision of Rule 3 can escape the jurisdiction of the appellate Court, but the same Order can be revised by the very same Court. Judicial Order must be reasoned Order. After the amendment, it must contain reason. The Trial Court must apply its mind to the materials placed before it, and, on being satisfied about the requirements of Order 39, Order 1 and 2 make the Order. Further, Rule.3 enjoins "reasons to be recorded." Under these circumstances when the Trial Court is required by law state reasons, but does not furnish them in its Order, it violates the provisions of 'the Code.' By its own inaction or intentional violation of the mandatory provisions of the Rules a Court cannot take away the right of appeal of a person aggrieved by that Order. As such, an ex parte Order of injunction, whether speaking or non-speaking, is appealable (Akmal Ali v. State of Assam; Shanita Holdings SDN and anr. v. Shanita Hotel Trichy Pvt. Limited; S.A. Rajendran Poosari v. The Commissioner, Hindu Religious and Charitable Endowment Department and ors. ; N. Lakshmana Doss v. The Secretary to Government of Tamil Nadu Department of Registration).14
5. Injunction to corporation binding on its officers.-
An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.
Interlocutory Orders
6. Power to Order interim sale.-
The Court may, on the application of any party to a suit, Order the sale, by any person named in such Order, and in such manner and on such terms as it thinks fit, of any movable property, being the subject-matter of such suit, or attached before Judgment in such suit, which is subject to speedy and natural decay, or which for any other just and sufficient cause it may be desirable to have sold at once.
Case Cited
1. PL. CT. SP. Subramanian Chettiar v. Meenakshi Achi MANU/TN/0071/1992: AIR 1992 Mad 354.
COMMENTS
Order XXXIX Rule 6 invests the power to the Court to Order interim sale of movable property (PL. CT. SP. Subramanian Chettiar v. Meenakshi Achi).1
7. Detention, preservation, inspection, etc., of subject-matter of suit.-
(1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit:
(a) make an Order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein ;
(b) for all or any of the purpose aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit; and
(c) for all or any of the purposes aforesaid authorise any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.
(2) The provisions as to execution of process shall apply, mutatis mutandis,
to persons authorised to enter under this rule.
ANNOTATIONS
High Court Amendment
Punjab, Haryana and Chandigarh
In Order XXXIX, in rule 7, in Sub-rule (1), for Clause (a), substitute the following clause, namely:
Case Cited
"(a) make an order for detention, preservation or inspection of any relevant documents or other evidence or of any property which is the subject-matter of such suit or as to which any question may arise therein." (w.e.f. 11.04.1975)
1. Ramswarup v. Mst. Kesar MANU/RH/0071/1958: AIR 1958 Raj 218.
2. Subal Kumar Dey v. Purna Chandra Giri MANU/OR/0057/1989: AIR 1989 Ori 214.
3. Totaram Ichharam Wani v. Dattu Mangu Wani MANU/MH/0126/1942: AIR 1943 Bom 143.
4. A. B. Tripathy v. Ahamad Ali, MANU/OR/0056/1987: AIR 1987 Ori 203
5. Bidhu v. Bimal, MANU/WB/0047/1983: AIR 1983 Cal 220.
6. Amiya Bhusan Tripathy v. Ahammad Ali MANU/OR/0056/1987: AIR 1987 Ori 203.
COMMENTS
Order 39 Rule 7(1)(a) is primarily meant to empower the Court to make an Order about the detention, preservation and inspection of the property in dispute in the suit but it further authorises the court to pass similar Orders about other property as to which any question might arise therein. This does not mean that the Court is authorised to pass an Order on the application of one party to make a search of the documents which might be in the possession of the opposite party and then detain them by saying that a question might arise about them in the suit (Ramswarup
v. Mst. Kesar).1 Power under this Rule is not frequently used. This is a power to be exercised by the Court when occasion demands and when inspection is necessary for proper appreciation and adjudication of the matter (Subal Kumar Dey v. Purna Chandra Giri).2
A Judge had power under Order 39 Rule 7 to give the Commissioner's authority to dig up the ornaments alleged to be in the Defendant's land (Totaram Ichharam Wani
v. Dattu Mangu Wani).3 A Commission can be issued to inspect the spot under this Rule for verifying the truthfulness of allegations and counter-allegation (A. B. Tripathy
v. Ahamad Ali).4 Similarly, in a suit by members of a club regarding dispute as to its accounts a commission can be issued to see and check accounts in the light of allegations of misappropriation (Bidhu v. Bimal).5 The effect of a report under Order 39, Rule 7 Code of Civil Procedure in which evidence has been taken and enquiry has been done by the Commissioner shall be considered by the Trial Court as and when occasion arises to make use of the same and the petitioner can always question the effect and validity of such a document (Amiya Bhusan Tripathy
v. Ahammad Ali).6
8. Application for such Orders to be after notice.-
(1) An application by the Plaintiff for an Order under Rule 6 or Rule 7 may be made [* * *] at any time after institution of the suit.
(2) An application by the Defendant for a like Order may be [* * *] at any time after appearance.
(3) Before making an Order under Rule 6 or Rule 7 on an application made for the purpose, the Court shall, except where it appears that the object of making such Order would be defeated by the delay, direct notice thereof to be given to the opposite party.
ANNOTATIONS
Amendments
The Code of Civil Procedure Amendment Act. 1976 in Sub-rule (1) omitted the text "after notice to the defendant". In Sub-rule (2) it omitted the text "after notice to the plaintiff". Lastly it inserted Sub-rule (3).
Effective Date of Amendment
The Code of Civil Procedure (Amendment) Act, 1976 wef. 01.02.1977
9. When party may be put in immediate possession of land the subject- matter of suit.-
Where land paying revenue to Government, or a tenure liable to sale, is the subject- matter of a suit, if the party in possession of such land or tenure neglects to pay the Government revenue, or the rent due to the proprietor of the tenure, as the case may be, and such land or tenure is consequently, Ordered to be sold, any other party to the suit claiming to have an interest in such land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the Court), be put in immediate possession of the land or tenure ;and the Court in its decree may award against the defaulter the amount so paid, with interest thereon at such rate as the Court thinks fit, or may charge the amount so paid, with interest thereon at such rate as the Court Orders, in any adjustment of accounts which may be directed in the decree passed in the suit.
10. Deposit of money, etc. in Court.-
Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may Order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.
ANNOTATIONS
High Court Amendment Bombay
In Order XXXIX, after rule 10, insert the
following rule, namely:
"11. Procedure on parties defying orders of Court, and committing breach of undertaking to the Court: (1) Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any defaults in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed
by the plaintiff or the applicant, or strike out the defences, if the defaults or contravention or breach is committed by the defendant or the opponent.
(2) The Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court:
Provided that before passing any order under this Sub-rule notice shall be given to the parties likely to be affected by the order to be passed." (w.e.f. 01.10.1983)
Case Cited
1. Smt. Lalbiakthangi v. Shri H. Duna MANU/GH/0005/1995: AIR 1995 Gau 12.
COMMENTS
Rule 10 contemplates, deposit of money in the Court when the subject matter of the suit is money or some other thing capable of delivery. The second condition appears to be that the other party should admit that he holds such money or other thing as a trustee for another party. In other words, the provision contained under Order 39, Rule 10, Code of Civil Procedure shall be attracted when the subject matter of the suit is money or some other thing capable of delivery and it is admitted by a party that the money or the thing which is the subject matter of the suit is held by it as a trustee for another party or it belongs/due to another party. Unless these two conditions are satisfied, it appears no Order in terms of Rule 10 can be passed (Smt. Lalbiakthangi
v. Shri H. Duna).1
Order XL
Appointment of Receivers
1. Appointment of receivers.-
(1) Where it appears to the Court to be just and convenient, the Court may by Order:
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property ;
(c) commit the same to the possession, custody or management of the receiver; and
(d) confer upon the receiver all such powers, as to bringing and defending suit and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.
(2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property, any person whom any party to the suit has not a present right so to remove.
ANNOTATIONS
High Court Amendments
Allahabad
In Order XL, in Rule (1), in Sub-rule (2), after the words "any person", insert a comma and the words "not being a party to the suit.
[Vide Notification No. 2875/35(a)-5(2), dated 10th July, 1943].
Karnataka
Same as in Allahabad.