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Section 39 of the Civil Procedure Code, 1908 encompasses the concept and matters related to the power to grant a temporary injunction is in the discretion of the Court, but this discretion, should be exercised reasonably, judiciously and on sound legal principles. Generally, before granting the injunction, the Court must be satisfied about the following conditions: i) Prima facie case; ii) Irreparable Injury; and iii) Balance of convenience i) Prima facie case: The applicant must make out a prima facie case in support of the right claimed by him. The Court must be satisfied that there is a bona fide dispute raised by the applicant and on the facts before the Court there is a probability of the applicant being entitled to the relief claimed by him. In deciding prima facie case; the Court is to be guided by the Plaintiffs case as revealed in the plaint, affidavits or other materials produced by him... and "while determining whether a prima facie case had been made out, the relevant consideration is, whether' on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at that evidence."? ii) Irreparable Injury:The applicant must further satisfy the Court that he will suffer irreparable injury if the injunction as prayed is not granted, and there is no other remedy open to him by which he can protect himself from the consequences of apprehended injury. The expression "irreparable injury" means that the injury must be material one, which cannot be adequately compensated by damages. iii) Balance of Convenience: The balance of convenience must be in favour of the applicant. In other words the Court must be satisfied that the compensation,
mischief or inconvenience which is likely to be caused to the applicant by withholding the injunction will be greater than that which is likely to be caused to the opposite party by granting it. Discretionary Remedy: Since grant of injunction is discretionary and an equitable relief, even if all the conditions are satisfied, the Court may refuse to grant it for some other reasons e.g., on the ground of delay, latches or acquiescence or where the applicant has not come with clean hands or has suppressed material facts, or where monetary compensation is adequate relief. To begin with the analysis, as to why this fact is overlooked in practice, we will draw reference to the rules of natural justice which demand that when an application under order 39 Rules 1 and 2, C.P.C. is made before a court, the person(s) against whom the relief is sought for must be given an opportunity of being heard. But, sometimes a situation/circumstance may demand immediate interference of the court to pass an order, which if not passed may occasion failure of justice and would defeat the very purpose of making such application. In such a situation, the Court may proceed to entertain the application for interim injunction filed under Order 39 Rules 1 and 2, C.P.C. before issuance of notice to person(s) against whom the relief is sought for. Accordingly, an ex- parte ad interim order of injunction is passed in exercise of power conferred under Order 39 Rules 1 and 2, C.P.C. Order for injunction may be discharged, varied or set aside under order 39 Rule 4 which states as follows: Any order for an injunction may be discharged, or varied, or set aside by the Court, on an application 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 his knowingly made a false or misleading
not sustainable since the suit itself was amicably settled. From that order dismissing the defendant's application under Section 95 of the Code of Civil Procedure the defendant appealed and the appellate Court taking the view that an application under Section 95 of C. P. C. must always be preceded by an application for the cancellation of the order of attachment which the defendant had not made in this case, considered the application presented by the defendant to be not maintainable and accordingly dismissed the appeal. The position therefore was that, while the first Court dismissed the defendant's application on the ground that that application could not be pursued after the suit had been settled out of Court, the appellate Court rested its conclusion on another ground, viz., that the omission on the part of the defendant to make an application for getting the attachment set aside was an impediment to the claim for compensation. It was ruled that payment of the amount did not necessarily meant his withdrawal of application for compensation owing to the injury caused to him. Hence, it can be said that appeals will lie if a temporary injunction has been granted on insufficient grounds. Section 95 of the Code of Civil Procedure leads; "(1) Where, in any suit in which an arrest or attachment has been effected or a ' temporary injunction granted under the last preceding section,-- (a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or (b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same, the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding one thousand rupees, as it deems a reasonable compensation to the defendant for the expenses or injury caused to him:
Provided that a Court shall not award, under this section, an amount exceeding the limits of its pecuniary jurisdiction. (2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction." An appeal shall lie from the following orders under the provisions of section 104, namely:(r) an order under rule 1, rule 2 [rule 2A], rule 4 or rule 10 of Order XXXIX; The question now arises is, which provision of procedural law should onepursue to get the desired relief of setting aside an ex-parte ad interim order of injunction is passed in exercise of power conferred under Order 39 Rules 1 and 2, CPC. The full bench of the apex court (AIR 1970 All 376, Zila Parishad, Badaun&Ors. v. Brahma Rishi Sharma) has held:- " that against an ex parte order granting temporary injunction the aggrieved party has two options; either to approach the same courti.e (Order 39 Rule 4), who had passed ex parte order for any relief or to file an appeal under Order 43 Rule 1 of the Code." The aforesaid principle stood firm in the case of Subhas Mohan Dev's case (supra), once again a full bench of this Court in (1984)1 GLR 133 : has laid down the law on the subject in the following words: "If an order of ad interim injunction is passed under Order 39, R.1 or 2 of the Code of Civil Procedure, whether ex parte or otherwise, it is appealable, as O. 43, R.1 (r) enables a party aggrieved by any order under O.39, R.1 or 2 to prefer on appeal. In our opinion, therefore, 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 O.1 or 2 are always rendered ex parte, Parliament being fully aware of the situation permitted appeals against
"Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code." We can conclude 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 interpreting the word 'final' before 'order' in Rule 1 (r). Courts do not ordinarily make additions in enactments. That is a legislative function. 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. C.P.C. 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. It is a law under Rule 3 A Order 39 which states that a court to dispose of application for injunction within thirty days- Where an injunction has been granted without giving a notice to the opposite party, the court shall make an endevour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable to do, it shall record its reasons for such inability. (In Ratna Commercial Enterprises : FAO (OS) No.206/2007 IN CS(OS) No.570/2007.)
Appearing for the defendants Mr. A.S.Chandhiok learned senior counsel submits that the non-disposal of the application under Order 39 Rule 4 filed by the defendant on 3.4.2007 within 30 days contravened the mandate of Order 39 Rule 3 A CPC. Consequently, the defendants were entitled to file the present appeal against the impugned order. He places reliance upon the judgment of the Hon'ble Supreme Court in A.Venkatasubbiah Naidu v. S.Chellappan AIR 2000 SCC 3032. He next submits that the ad interim ex parte injunction granted ought to be vacated for several reasons. "The aforesaid rule casts a three pronged protection to the parties 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 30 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." The upshot of the above delineation of the law by the Hon'ble Supreme Court is as under: (i) In the exceptional circumstances where a Court is unable to dispose of the application Under Order 39 Rule 4 within 30 days "It shall record its reasons for such inability"; (ii) If the court does not dispose of the application then notwithstanding the fact that the order is not appealable in terms of Order 43 Rule 1, the aggrieved party shall be entitled to the right of appeal; and (iii) When such an appeal is filed "the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the court in complying with the provisions of Rule 3A."
