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Observation and Approach of Observation and Approach of Indian CourtsIndian CourtsEx-parte Interim Injunction Ex-parte Interim Injunction orders in some cases can orders in some cases can create havoc and getting create havoc and getting them vacated or modified in them vacated or modified in our existing judicial system is our existing judicial system is a nightmarea nightmareWhether the Courts in India Whether the Courts in India follow the principles and follow the principles and guidelines as prescribed by guidelines as prescribed by the Supreme Court of Indiathe Supreme Court of India
Legal Provisions Legal Provisions Definition of InjunctionDefinition of Injunction Legal Provisions related to Legal Provisions related to
Injunction under CPCInjunction under CPC Temporary Injunction as Temporary Injunction as
prescribed under the prescribed under the Specific Relief ActSpecific Relief Act
Scope of Temporary Scope of Temporary Injunction Injunction
Delay in disposal of Injunction Application despite Insertion of Order 39 Rule 3-A of CPC
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Agenda
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Court’s Position
‘Rameshwari Devi and Ors vs Nirmala Devi and Ors [(2011) 8 SCC 249] had rightly quoted “Ex-parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare.”
Strong misuse of the provisions and approach which the Indian courts follow in awarding Ex-parte orders.
The Hon’ble Supreme Court had laid down certain guidelines to be followed by the Courts in India while passing such Ex-parte orders. However, the question remains whether such Guidelines have been followed up by all the courts in India and whether the procedure as prescribed therein has been followed up.
Courts still have a habit of passing Ex-parte orders as if it is a matter of right of the Plaintiff. The law on injunction is well settled that Injunction cannot be claimed as a matter of right but is a discretionary and equitable relief and must be granted only where it is absolutely necessary.
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Common Man’s General Impression About Litigation
Despite several precedents by Hon’ble Apex Court, various high courts and district courts have a tendency to pass such ex-parte orders which becomes a nightmare for the defendants.
As rightly stated by the Learned amicus curiae. Dr. Arun Mohan about common man's general impression about litigation in following words in and which seems to be correct.
"Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road."
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Apex Court’s view on the steps to be followed in civil trails
Hon’ble Apex Court in Rameshwari Devi (Supra) had quoted “In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials.
A. Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.
B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Code. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice.
C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.
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D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits.
E. The courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing concerned parties appropriate orders should be passed.
F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.
G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.
Apex Court’s view on the steps to be followed in civil trails (Cont.)
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H. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice.
I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.
J. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed.
Apex Court’s view on the steps to be followed in civil trails (Cont.)
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Whether the Courts in India follow the outlined?
It would be correct to state that the Ex-parte order has now become a threat and menace to the rule of Natural Justice. The Scope and Object of the Legislature has lost its importance and the Sections corresponding to Injunction is being used as a tool to create pressure and loss to the affected parties.
There have been instances in IP litigations, wherein ex-partee orders are being passed without going into the merits of the case. The approach of various courts in passing ex-partee orders has been contrary to the principle set out be the Apex Court in passing such exparte orders .
The Hon’ble Delhi high court is known as the best court for IP Litigation. However the same court has also been known for passing ex parte orders day in out, in unwarranted cases as well. The precedence as set out by various judges had lead to the situation wherein parties prefer to file cases in Delhi High Court so that an Ex-parte order can be obtained and according a pressure can be built up.
The Defendant, on the other hand, suffers from such orders wherein they not only have to suffer loss of business on account of such Stay. Without affording an opportunity to hear is it necessary to give Ex-partee orders. The question is how the ex-parte orders can be passed in such case and what if an opportunity be granted to the other parties before deciding the case on merits.
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Life Technologies Corporation & Anr Vs ATZ Lab Solutions (I) Pvt. Ltd & Ors
Ex-parte order was passed against the Defendants on 31st of May, 2012. Said case was listed on the last day of court before Summer Vacation.
The Suit was filed on the basis of irrelevant documents which ran in around 7000 pages and was specifically filed to misguide the Hon’ble Judge. That after hearing the contentions, an ex-parte order was passed by the Hon’ble Judge, wherein the Defendant was restrained to conduct the business in the said name.
It is to be noted that the said order was obtained by the Plaintiff without highlighting the fact that the Plaintiff was earlier unable to get an order before NAF (National Arbitration Forum) under UDRP policy wherein the right of the defendant over the disputed Trademark was not denied by NAF.
The Learned Single Judge also failed to appreciate or failed to identify that this was a clear cut case of Acquiescence and in such cases, normally Ex-partee orders should not be passed as per the settled principle of Law.
The Plaintiff has also not disclosed the fact that before filling the case before Delhi High Court and after failing to get an order in NAF, they contacted the Defendant for a possible settlement over the dispute.
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In all these circumstances, was it legal to pass an Ex-parte order against the Defendants, however all these aspects were not highlighted to the Hon’ble Judge.
The Defendant immediately filed an Appeal against the said order. The appeal was filed during the Vacation Bench, but despite the same no relief was granted by the Appellate court, however only one relief was given that there was a direction given to the Single bench to hear and dispose the matter at the earliest.
You would be surprised to know that the Defendant had to wait for almost 19 months to get the order vacated. The Vacation of the Ex-parte order came on 29 th of January, 2014 even after pursuing the case with the best known lawyers and despite the matter being heard regularity.
It took the defendant 52 hearings altogether to get the order vacated in the said suit. The cost for such hearings has been troublesome for the defendants which have gone in few Crores. An interesting fact is that the main suit has not proceeded further in these years and the Pleadings are yet to be completed.
This shows the conduct of the parties filling the suit and once an order of injunction is taken, the Plaintiff tends to delay the hearing as much as possible. They resort to dilatory tactic to delay the hearing in all possible means by either taking unnecessary adjournments or by filling frivolous interim application.
Life Technologies Corporation & Anr Vs ATZ Lab Solutions (I) Pvt. Ltd & Ors
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An injunction is defined in Halsbury's Laws as: “A judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing.”
Definition of InjunctionDefinition of Injunction
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Sections 94- Supplemental Proceedings—In order to prevent the ends of justice from being, defeated the Court may, if it is to prescribed,—(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; (e) make such other interlocutory orders as may appear to the Court to be just and convenient.
Legal Provisions With Respect to Injunction under CPC
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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 a 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 be 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.
Order XXXIX of the Civil Procedure Code,
TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS
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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 be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.
Order XXXIX of the Civil Procedure Code,
TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS
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Temporary injunctions as prescribed under the Specific Relief Act.
Section 36- Preventive relief how granted-Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.
Section 37- Temporary and perpetual injunctions.- (1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908). (2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.
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TEMPORARY INJUNCTION SCOPE:
Rule 1 of Order XXXIX is primarily concerned with the preservation of the property in dispute till the legal rights are ascertained.
On the literal reading of the rule, the situation where the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in suit, the Court may grant a temporary injunction to restrain such an act or make other order for the purpose of preventing the dispossession of the plaintiff or for the purpose of preventing the causing of injury to the plaintiff in relation to any property in dispute.
Temporary injunction is a provisional remedy that is invoked to preserve the subject matter in its existing condition. Its purpose is to prevent dissolution of the plaintiff's rights.
The main reason for use of a temporary injunction is the need for immediate relief. Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the Court may in order to prevent the ends of justice from being defeated, grant a temporary injunction or make such other interlocutory order as may appear to the Court to be just and convenient.
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Case Law laying down principle in relation to Case Law laying down principle in relation to grant of ad-interim Injunctiongrant of ad-interim Injunction
The Hon’ble Apex Court in Morgan Stanley Mutual Fund v. Kartick Das [(1994) 4 SCC 225], after considering the various authorities this Court laid down the guiding principles in relation to grant of an ad interim injunction which are as under:
As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the Court in the grant of ex parte injunction are:
(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 sometime 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
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Delay in Disposal Despite Insertion of Order 39 RULE 3-A
Order 39 Rule 3-A. Provides as under
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 main object reason behind the amendment by inserting the said section was with that “Ex-parte temporary injunction are one of the causes of delay in litigation, because the party which obtains injunction does not show any inclination to expedite the disposal of the suit.
The new Rule was inserted to ensure that while the power to issue ex-parte injunction is not curtained, because the exercise of such powers, in urgent cases, is needed, there is a time-limit with regard to duration of such ex-partee injunction.
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However, insertion of the above section has not curtained the time limit as desired and the court still follows the same procedures and the cases are still delayed despite the above provision.
There is no doubt that Rule 3A under Order 39 casts a protection to the party against whom the ex parte injunction order was passed.
First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days.
Second is the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the aforesaid time the Court has to record the reasons thereof in writing.
But nothing has been mandatory and as such the affected party has to suffer.
Delay in Disposal Despite Insertion of Order 39 RULE 3-A
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Though there are guidelines of Supreme Court on this aspect also as provided in. A. Venkatasubbiah Naidu vs S. Chellappan And Ors (AIR 2000 SC 3032) while dealing with the consequence, if any, on account of the Court failing to pass the final orders within thirty days as enjoined by Rule3-A has held that “the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that 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.”
Delay in Disposal Despite Insertion of Order 39 RULE 3-A
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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 thirty days mentioned in the Rule” The above provision no doubt gives some respite to the Defendants literally, but practically the defendant is still susceptible to such hardship. Filling an appeal on the ground of Order 39 Rule 3-A is not always fruitful as the same may also take time since the Appellate court is also overburdened. Though the insertion of this section gives a valuable right to the party being affected but it cannot be termed as absolute since the practical problems in pursuing the appeal is same as pursuing the Application for Vacation of Stay.
Delay in Disposal Despite Insertion of Order 39 RULE 3-A
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Conclusion
Therefore, as a rule, the court should grant interim injunction or stay order only after hearing the defendants or the respondents, and in case the court has to grant ex-parte injunction in exceptional cases, then while granting injunction, it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits. This approach has not been followed by the Courts in India. In alternative, the Legislature should also look in the matter and an amendment must be brought to deal with the practical problems which is faced by the affected parties.
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