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Interim Order is to Protect and Preserve and not to Destroy or Ruin
by P.N. Chatterjee*

Cite as : (1997) 6 SCC (Jour) 18

There are several decisions of the Apex Court where from it will appear that in view of the interim orders made by the High Courts merely on asking by a person whether party or not in a suit or proceeding, persons aggrieved have been compelled to suffer injury and such injury remained unredressed. In this connection reference may be made to Satyabrata Biswas v. Kalyan Kumar Kisku1 from which it would appear that on oral prayer made Somani Builders which were not parties in the proceeding obtained possession of the property being the subject-matter of the suit and enjoyed the same till the matter was decided by the Supreme Court holding that such firm was not entitled to occupy the property in question. It appears that the financial injury suffered remained unredressed although Somani Builders were directed to deliver vacant possession. As the cost of litigation has increased enormously, it is very difficult for ordinary litigants to approach the Supreme Court and as such many persons although aggrieved are suffering injury each day without remedy.

The time has come when Parliament and also the Hon'ble Courts should take appropriate steps so that guidelines indicated by the Apex Court particularly for granting interim orders ex parte are followed by all courts and tribunals.

In connection with granting of interim orders particularly in the absence of the party against whom the order is being made, there are some provisions in the Code of Civil Procedure. For example, Rules 3 and 3-A of Order 39 of the Code of Civil Procedure make a code dealing with different aspects of injunctions. They lay down:

"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 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 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.

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

The Apex Court in Morgans Stanley Mutual Fund v. Kartick Das2 laid down the factors which should weigh with the Court in the grant of ex parte injunction and the said factors are as follows:

"(a) whether irreparable or serious mischief will ensue to the plaintiff;

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;

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

(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application;

(f) even if granted, the ex parte injunction would be for a limited period of time;

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

Although the decision of the Apex Court should be followed by all courts and tribunals and all concerned throughout India, it would be evident from the orders made even by the District and Sub-Divisional Courts that neither the provisions of the Code nor the factors laid down by the Apex Court are followed and ex parte orders granted without even stipulating any time for hearing even though it has been provided in the Code of Civil Procedure that application for interim order should be heard within 30 days.

The practice of granting injunction merely on asking has been deprecated by the Apex Court several times and it is really unfortunate that the observations of the Apex Court are not followed by the subordinate courts as well as the High Courts.

It is abundantly clear that the Apex Court from time to time made orders so that interim orders are not made merely on asking but although the decisions mentioned hereinabove are binding on all concerned throughout India, the same are not actually followed by all courts.

Besides, many persons although aggrieved are not in a position to reach the Apex Court and their greivances remain unredressed.

* Senior Advocate Return to Text

  1. (1994) 2 SCC 266 : AIR 1994 SC 1837 Return to Text
  2. (1994) 4 SCC 225 Return to Text
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