1. The problem of Interim Order in Civil Procedure.pdf

Assignment
On
‘The problem of Interim Order in Civil Procedure’
Course Title: Code of Civil Procedure and Law of Limitation Part-2
Course Code: LL. B-802
Submitted To
Md. Abdul Musabbir Chowdhury
Assistant Professor
Department of Law
Leading University, Sylhet
Submitted By
Aliva Jannat
1724050002
Prosenjit Sarkar
1724050005
Habiba Islam
1724050006
Md. Mazharul Islam
1714050043
Department of Law
Date of Submission
8th
December, 2020

Acknowledgement
In preparation of our assignment, we had to take the help and guidance of some respected persons,
who deserve my deepest gratitude. As the completion of this assignment gave us much pleasure,
we would like to show our gratitude Md. Abdul Musabbir Chowdhury, Assistant Professor,
Department of Law, Leading University for giving us a good guideline for assignment
throughout numerous consultations. We would also like to expand my gratitude to all those who
have directly and indirectly guided us in writing this assignment. His expert guidance, affectionate
encouragement and critical suggestions provided us necessary insight into this assignment and
paved the way for meaningful ending of this assignment in an efficient manner. He has constantly
challenged us with his questioning and he has provided prompt and constructive feedback on our
work at all stages. We get this opportunity to express about feelings about him. We recall his
elegant and lucid lectures with in-depth knowledge on Code of Civil Procedure and Law of
Limitation Part-2 without which we feel, it might be almost impossible to sketch the map of this
assignment.
Finally, we must express my very profound gratitude to our parents and to our friends for providing
us with unfailing support and continuous encouragement during this pandemic COVID-19
situation. Their relentless supports helped us researching and writing this Assignment.

Table of Contents
Page No Title Page No
1 Introduction 05
2 Types of an Order 05-06
3 Essential Ingredients of an Order 06
4 What is Interim Order? 06-07
5 Objective of the Interim Order 07
6 How Interim Order Granted? 09-11
7 What is Temporary Injunction? 11
8 The Case in Which Temporary Injunction may be Granted 11-12
9 When Temporary Injunction may not Granted? 14-15
10 Remedies of Injunction 15
11 Provision of Ex Parte Injunction 16
12 Dispose of Ex Parte Injunction 16-17
13 Temporary Injunction may be Granted Where the Defendant is
About to Commit a Breach of Contract
19
14 Prima Facie Case 20
15 Balance of Convenience 20-21
16 Irreparable Injury 21
17 Conclusion 21
18 References 22

Assignment
On
Submitted To
Assistant Professor
Department of Law
Submitted By
Aliva Jannat
1724050002
Department of Law
Date of Submission
8th
December, 2020

1. Introduction
The directive on stay applications and injunctions has its own derivative model in practice,
but the development in the United Kingdom can provide certain valuable insights as to governing
principles that deal with them; especially the fallacy of Status Quo orders. As Zuckerman explains
an interim relief is an order made by the court directing a party (normally defendant) or non-party
to do or refrain from doing an act in connection with the litigation claim set up by the plaintiff.
Basically, the meaning of interim is something which is temporary or for the time being. While
the term order has been defined under Section 2(14) of the Code of Civil Procedure, 1908 which
means the formal expression of any decision of a civil court which is not a decree. Therefore,
interlocutory or interim orders may be defined as those orders which are passed by the court during
pendency of the suits. Interlocutory order is another word for interim orders. Such interim or
interlocutory orders are of temporary nature. These temporary orders are required because it was
felt by legislature that sometimes a court is required to grant such relief or pass such order as may
be necessary to be passed. Then court can pass these temporary or interim orders on the pillars of
justice and equity. At the same time, any abuse of process thereof, during the pendency of a
proceeding is also mitigated. The rights of parties are protected in the interval between the
commencement of the proceeding and final adjudication.
2. Types of an Order
Generally, an Order is of two types: –
Appealable Order: The Order in which the court can add any person as a party at any point in
the proceedings.

Non-Appealable Order: The Order of the Bankruptcy Court which is in effect and as to which,
the time to appeal, petition for certiorari or rehearing has expired and shall not be pending or those
have been affirmed by the highest court to which such order shall have been denied or resulted in
no modification of such order, and the time to take any further step has expired.
3. Essential Ingredients of an Order
For an Order to be accepted, there are certain essential ingredients. These are:
1. It should be the formal decision of any decision.
2. The decision should be pronounced by the Civil Court.
3. The formal expression should not be a decree.
Orders may be further Summarized as:
 Commissions: Order 26.
 Arrest before judgement: Order 38.
 Attachment before judgement: Order 38.
 Temporary injunction: Order 39.
 Interlocutory/ Interim orders: order 39.
 Receiver: Order 40.
 Security for Costs: Order 25.
 Payment in court: Order 24.
4. What is Interim Order?
According to the dictionary meaning, the word interim means for the time being,
temporary, provisional or not final. Thus, according to the law, an Interim Order refers to “an order

passed by the court during the pendency of a suit or proceedings to ensure that the interest of the
parties to the litigation are not harmed and the subject matter of the suit is maintained”.
The courts in a country are constituted to maintain peace and order and to provide justice
to ensure “Status quo” by possessing all such powers as to be necessary to do the right and to undo
the wrong to the parties in the interval between the commencement of the proceedings and final
adjudication.
For instance, there is a dispute between A and B relating to a property. B makes an
application to the court asking the court to restrict A from selling the property to the third party or
doing any construction on the said property until the final orders are given out. To protect B’s
rights and ensure protection and justice to B, the court passes an order for B’s relief until the final
judgment is given. The order passed is called an interim order.
5. Objective of the Interim Order
The objective of the interim order is to protect rights of the parties during the pendency of
litigation and are granted before commencement of proceedings, not being a final resolution to the
matter in dispute. Notwithstanding, interim orders can be granted at any stage of the proceedings,
even after the final judgment being orders of freezing injunctions which are passed after the final
judgment for its enforcement. They can range from being mere case management orders to interim
injunctions and can be classified as ‘process orders’ and ‘protective orders’, respectively. Process
orders regulate the litigation process and are relatively simple in nature, for example, an order to
carry out inspection of a property, order to obtain evidence and similar directions. The challenging
and complex aspect of interim remedies are protective orders or injunctions.

Assignment
On
Submitted To
Assistant Professor
Department of Law
Submitted By
Prosenjit Sarkar
1724050005
Department of Law
Date of Submission
8th
December, 2020

6. How Interim Order Granted?
Considering injunctions, the grant of interim relief is based upon three fundamental
principles; first, it can be granted for protection of recognizable rights; second, it is a provisional
remedy to avoid irreparable harm to parties and third, the ability of the court to grant ‘restorative
compensation’ after the final judgment to a party who was prevented from exercising his right
during the pendency of litigation. Given these principles, their application in practice is far more
complicated as it requires serious balancing of interests and protection of rights.
The Inescapable Dilemma : The right to grant interim injunction has its origin in equity, but in
most jurisdictions, it has been codified and is a statutory right exercisable at the discretion of the
court. So, when a court adjudicates an interim application before the commencement of
proceedings it has to strike a balance been the fundamental principle of common law of due process
and the need to safeguard rights of litigants during the pendency of litigation from irreparable
harm.
The Latin maxim audi alteram partem requires that both/all the parties have a right of hearing and
to lead evidence before their rights are subject to restrictions, as part of fair procedure of justice.
Unless, the party seeking interim injunction is unable to establish his right, no restrictions shall be
placed upon the right of the defendant. On the other hand, if such restrictions are not sanctioned,
then the plaintiff may be subject to an irreparable harm.
Further, on grant of injunction if the plaintiff fails to establish his right in the final judgment then
the court has harmed the defendant’s right all throughout lis pendens. Alternatively, if the interim
injunction is rejected and the plaintiff succeeds to establish a claim in the final judgment then the

claimant’s right might have been irreparably harmed. Hence, courts constantly struggle to
appropriately place the fulcrum: the inescapable dilemma. Grant of injunctions after
commencement of proceedings or after the final judgment might fulfill the requirement of due
process of law by providing opportunity of hearing to all parties but the dilemma in concept
remains the same as any party can apply for interim injunction after commencement of
proceedings.
Hypothetically, a tree standing in the garden of ‘A’ is blocking sunlight over the adjacent house
owned by ‘B’. ‘B’ decides to cut the tree claiming he has easementary right to do so. ‘A’ obviously
cannot use force upon ‘B’ and therefore moves an application for interim injunction before the
competent court. Now, if the court refuses to grant injunction and ‘B’ takes down the tree, ‘A’ will
incur an irreparable harm if he succeeds in the final judgment. It is important to note that damages
or compensation cannot replace the aesthetic value of the tree which ‘A’ wants to protect.
Alternatively, if the court grants injunction, it has done so without giving an opportunity of hearing
to ‘B’ and before ‘A’ has establish his title-right over the tree. Further, if ‘B’ succeeds in the final
judgment, the court would have ended up harming his right of taking down the tree during the
pendency of litigation. In such a situation, the appropriate approach would be of ‘minimizing
harm’, to adopt a method which protects and preserves rights rather than harm them. In light of
the existing dilemma, various governing principles have developed over time which can provide
guidance in deciding interim applications.
Status Quo: A Fallacy: A notable principle is of Status-Quo which required parties to maintain
things as they are until the final judgment is made. Zuckerman states that this principle is fatally
flawed as interim injunction does not deal with physical objects but preservation of rights[12] and

barring few exceptions it cannot be generally applied to all cases. Suppose an injunction is being
sought against misuse of a patent and an order of status quo has been passed. This order has no
functional utility as it neither preserves nor protects the right of the claimant, assuming he is able
to establish infringement in the final judgment. Megaw L.J. commented on the ambiguity of the
status quo principle, “it is necessary to answer the question: Existing when? Before what point of
time?” as it may vary from case to case and how to decide at what juncture status quo should be
implemented. Thus, status quo is no blanket solution to all disputes and the idea at the interlocutory
stage is to judge whether an injunction will produce a just outcome at the end of litigation
Governing Principles : Until 1974, interim injunctions were granted if the applicant could show
a prima facie case on merits. Thus, if in the mind of the judge the applicant had a fair chance on
finally succeeding in the final judgment then normally an injunction would be granted. In context,
the initial averments and evidence led by the applicant should carve out an arguable case.
Thereafter, without hearing the other side and irrespective of the harm that may be caused to the
defendant, an injunction could have been procured.
7. What is Temporary Injunction?
An injunction is a judicial process whereby a party is required to do, or to refrain from
doing, any particular act. A temporary injunction is an order by which a party to an action required
to refrain from doing a particular thing until the suit is disposed of or until further order of the
court. A temporary injunction is interim in nature, granted or any interlocutory application of the
plaintiff. Order 39 deals with temporary injunction as well as section 53 of the Specific Relief
Act, 1877. However, the issue temporary injunction is to be governed by the Code of Civil
Procedure, 1908. The object of the temporary injunction is to keep maters status quo until the

question at issue between the party is determined. It is a kind of preventive relief. Temporary
injunction in its nature and its solve objective is to preserve the subject matter in controversy
without determining the rights of the parties and to prevent the doing of act whereby the subject
matter in controversy may be endangered.

Assignment
On
Submitted To
Assistant Professor
Department of Law
Submitted By
Habiba Islam
1724050006
Department of Law
Date of Submission
8th
December, 2020

8. The Case in Which Temporary Injunction may be Granted
I. A temporary injunction can be brought against alienation when the plaintiff fears that the
defendants might dispose off the property or assets before the final decree is pronounced
by the Courts. A bona fide possessor of property should not be dispossessed pending suit
unless there is some substantial reason. The matter should be considered judicially in all
its aspects. The plaintiff must show prima facie that he has a strong case that is, either a
good title to the property or a special equity in his favor requiring immediate dispossession
of the defendant, or the property is in danger of being wasted. If the rightful owner threatens
his peaceful possession, he can approach courts of law and pray for equitable relief of
injunction to protect his possession. But when it is doubtful to come to conclusion that the
plaintiff’s possession of the property is doubtful, O 39, r 1 of the Code has no application.
II. Where there is an involvement of fraudulent intention to harm the creditors by removing
or disposing off the property.
III. On the basis of equity and justice temporary injunction may be granted.
IV. Where a defendant threatens to dispose off the plaintiff or cause injury to him involving
any property in a suit. Where a plaintiff who is out of possession claims possession, the
court will not grant an injunction against the defendant in possession under a claim of right
unless the threatened injury will be irreparable and an injunction may be granted as to the
user of premises which the plaintiff has leased to the defendant. Further, injunction is terms
of right to worship are not covered under this rule.
V. Temporary injunction may granted in cases where property is in danger of being
wrongfully sold in execution of a Decree. In a case, certain property attached in execution
of a decree obtained by A against B is notified for sale at the instance of A. C, challenging

that the property belongs to him and not to B, sues A and B for declaration of his title to
the property, and applies for an injunction under this rule to restrain A from bringing the
property to sale until the suit is disposed of. If the property in dispute in the suit is in danger
of being wrongfully sold in execution of the decree the court has the power to grant the
injunction under this rule. However, in a suit by A against B, A cannot get an injunction to
restrain B from selling property which is also the subject of another suit by B against A
and in which A has not filed an appeal.
VI. Where a suit is filed to declare that a decree in an earlier suit is vitiated by fraud, an interim
injunction to restrain execution can be granted, on prima facie proof of fraud
VII. Temporary injunction may be granted in Tenancy cases, where is a case named Bhola Nath
v. Maharajj Raj Saheb, a plaintiff was a lessee who continued in possession over a long
stretch of time by holding over after termination of the lessee. The lessor sought to evict
the plaintiff otherwise than in due course of law. It was held that the plaintiff could be
granted a temporary injunction, restraining the defendant from evicting the plaintiff
otherwise than in the course of law.
VIII. In case of Coparcenary, in a suit for partition and accounts, when an injunction is sought
to restrain the defendant co-sharer from transferring his share pendent lite, the legal
position according to the Gujarat High Court was finally observed in the case of Ibrahim
Shah Mond v. Noor Ahmed. To avoid situations of multiplicity of proceedings the court
should issue an injunction restraining the co-sharer defendant from transferring his
share pendente lite.

9. When Temporary Injunction may not Granted?
I. A temporary injunction cannot be granted just for mere asking of it after filling of a suit.
II. It cannot be invoked where an employer has inherent right to dispense with his employee’s
service.
III. It cannot be granted in favour of a person in unauthorized possession.
IV. It cannot be granted against operation of a bank account opened with a specific condition.
V. It cannot be granted in a case relating to contract which cannot be enforced.
VI. It cannot be granted in respect of departmental proceeding,
VII. It cannot be granted, if it interferes with public duties.
VIII. It cannot be granted if it is prohibited by any law.
10. Remedies of Injunction
I. Any order for an injunction maybe discharged, or varied, or set aside by the court, on the
application made thereto by any party dissatisfied with such order.
II. An appeal shall lie from an order passed under rule 1 and 2 of order 39 of the Code of Civil
Procedure, 1908.
III. Even an injunction is discharged, or varied, or set by the Court under rule 4 of order 39, an
appeal shall lie against such order of the court.
IV. An order granting or refusing an injunction is a case decided within the meaning of section
115 of the CPC and, hence, a revision lies against such an order.
11. Provision of Ex Parte Injunction
The court has the power to grant an ex parte injunction without issuing a notice or granting
a hearing to the party. Under exceptional circumstances, court shall not, without serving reasonable

notice to the Government pleader and giving him or any Pleader authorized by him in that behalf
an opportunity of being heard, pass ex parte any order of interim or temporary injunction.
12. Dispose of Ex Parte Injunction
If any order of ad interim or temporary injunction is passed Ex Parte at the instance of a
private party against another private party, the court shall hear and dispose of the matter on merit
within seven days of appearance of the opposite party, unless the period is extended further at the
instances of the opposite party and any such order of ad interim or temporary injunction shall
stands vacated, if the party at whose instance it was passed , prays for adjournment ,or on being
called upon by the court, fails to attend hearing.

Assignment
On
Submitted To
Assistant Professor
Department of Law
Submitted By
Md. Mazharul Islam
1714050043
Department of Law
Date of Submission
8th
December, 2020

13. Temporary Injunction may be Granted Where the Defendant is About to
Commit a Breach of Contract
According to the Rule 2 of CPC, temporary injunction may be granted where the defendant
is about to commit a breach of contract, or other injury of any kind. Where the court is of the
opinion that the interest of justice so requires, it may grant temporary injunction. Where the court
is of the opinion that the very object of granting temporary injunction would be defeated by delay,
it can grant an interim injunction in favour of the applicant. Chartered High Courts also have
inherent power under their general equity jurisdiction to grant an injunction restraining a party
from proceeding with a suit pending in another court. To grant the order of temporary injunction
is purely a discretionary power of the court. This discretion is to be exercised according to the
established judicial principles and judicially. The following principles are laid down for
consideration by the court while granting temporary injunction:
Firstly- The plaintiff makes out a prima facie case;
Secondly- That the plaintiff will suffer irreparable loss if the injunction prayed for is not granted;
and
Thirdly- The balance of convenience lies in favour of the plaintiff.
Case Study: MT. AymumNessa v. md. Obaidul haque, temporary injunction should
be refused in the absence of the above mentioned three principles.

14. Prima Facie Case
The expression “prima facie” means at the first sight or on the first appearance or on the
face of it, or so far as it can be judged from the first disclosure. Prima facie case means that
evidence brought on record would reasonably allow the conclusion that the plaintiff seeks.
The prima facie case would mean that a case which has proceeded upon sufficient proof to that
stage where it would support finding if evidence to contrary is disregarded.
15. Balance of Convenience
It is where there is doubt as to the adequacy of the respective remedies in damages available
to either party or to both, that the question of balance of convenience arises. The court should issue
an injunction where the balance of convenience is in favour of the plaintiff and not where the
balance is in favour of the opposite party. The meaning of “balance of convenience” in favour of
the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the
plaintiffs. The inconvenience caused to the plaintiff would be granted than that which would be
caused to the defendants if an injunction is grated but the suit is ultimately dismissed. Although it
is called “balance of convenience”, it is really the “balance of inconvenience”, and it is for the
plaintiffs to show that the inconvenience caused to them would be granted than that which may be
caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other
words, the plaintiffs have to show that the comparative mischief from the inconvenience which is
likely to arise from withholding the injunction will be greater than which is likely to arise from
granting it.

Case study: In Antaryami Dalabehera v. Bishnu Charan Dalabehera, as this point, it was held
that balance of convenience, which means, comparative mischief for inconvenience to the parties.
The inconvenience to the petitioner if temporary Injunction is refused would be balanced and
compared with that of the opposite party, if it is granted.
16. Irreparable Injury
In Dalpat Kumar & Anr. v. Prahlad Singh & Ors., the Supreme Court explained the scope
of aforesaid material circumstances, but observed as under: “The phrases `prima facie case’,
`balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words
of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and
circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of
justice. The facts rest eloquent and speak for themselves. It is well-nigh impossible to find from
facts prima facie case and balance of convenience.”
17. Conclusion
Interim Orders have always been helpful and are necessary in providing justice to a party
until the final Order is laid down by the Judge. Where on one hand, it assures justice, on the other
hand, it may lead to misuse of justice, if the guidelines issued by the courts are not analyzed
properly. To be thought is the fact that if the average court’s time is decreased, there might not be
a need of passing the interim order and justice would be provided in due time.

References
I. Hossain, B. (2018). LAW AND PRACTICE OF CIVIL PROCEDURE (5th ed.). Hira
Publication.
II. Team @Law Times Journal. (2018, January 17). Interim Orders. Law Times Journal.
http://lawtimesjournal.in/interim-orders/
III. Principles of Civil Procedure: Governance of Interim Remedies (Injunctions) By-
Devaang Savla. (n.d.). Latest Laws. Retrieved December 5, 2020, from
https://www.latestlaws.com/articles/principles-of-civil-procedure-governance-of-interim-
remedies-injunctions-by-devaang-savla/
IV. Solution, I. L. (2020, July 8). Interim order. Indian Legal Solution.
https://indianlegalsolution.com/interim-order/
V. Pandey, A. (2019, September 30). Cases in which temporary injunction may be granted.
IPleaders. https://blog.ipleaders.in/injunction-temporary/

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