What is Ex Parte Injunction? Implications of ex parte injunction? What are the guidelines specified for granting ex parte injunction? …. You would find answers to these and more such questions here.
Relevant extracts from a few landmark judgments of Supreme Court, giving valuable insights into what why and how of ex-parte injunctions, are enumerated below:
- Ex Parte Injunction: Definition
- Extraordinary Power vested in Court
- 3 essential conditions – prima facie case, irreparable injury, balance of convenience
- Court to record reasons in writing before granting injunction
- Equitable relief, Not a matter of right
- Guidelines for granting ex parte Injunction
1. Ex Parte Injunction – Definition: In simple terms it is an Injunction issued without notice to the defendant.
In Duhaime’s Legal Dictionary –
Ex parte refers to those proceedings where one of the parties has not received notice and, therefore, is neither present nor represented.
In Cambridge Dictionary –
Injunction is defined as an official order given by a law court usually to stop someone from doing something.
In the Legal Dictionary –
Ex parte is Latin for ‘from one party’ or ‘for one party,’ referring to motions, hearings or orders granted on the request of and for the benefit of one party only. This is an exception to the basic rule of court procedure that both parties must be present at any argument before a judge.
According to the dictionary meaning –
Injunction is judicial process or order requiring the person or persons to whom it is directed to do or refrain from doing a particular act.
According to Halsbury’s Laws of England –
An injunction is a judicial remedy by which a person is ordered to refrain from doing or to do a particular act or thing. In the former case it is called a restrictive injunction, and in the latter a mandatory injunction.
According to Wex Legal Dictionary –
In civil procedure, ex parte is used to refer to motions for orders that can be granted without waiting for a response from the other side. Generally, these are orders that are only in place until further hearings can be held, such as a temporary restraining order.
Typically, a court will be hesitant to make an ex parte motion. This is because the Law guarantees a right to due process, and ex parte motions–due to their exclusion of one party–risk violating the excluded party’s right to due process.
2. Extra ordinary power vested in Court: Injunction is an equitable relief. And Court therefore has wide discretion which it needs to exercise in a judicial manner depending upon the facts and circumstances of the case. An ex-parte order for Injunction calls for extra caution as the relief claimed by a plaintiff is granted without hearing the opposite party.
In Shiv Kumar Chadha Vs. Municipal Corporation of Delhi 1993 (3) SCC 161 the Supreme Court observed –
Power to grant injunction is an extraordinary 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.
3. The three essentials conditions: Before deciding to grant an ex-parte order of Injunction the Court should be convinced of a prima facie case, balance of convenience, and an irreparable injury due to delay if an ex parte order is not granted.
(a) 1st condition – Prima facie case: Petitioner must make out a prima facie case in support of the right claimed. The court ought to be convinced that there is a bonafide dispute requiring investigation, trial and decision based on merit with a probability that petitioner is entitled to the relief. Burden of proving the prima facie case is on petitioner and the court will only be guided by the material produced before it – the plaint, affidavit, and any other material as produced by the petitioner.
(b) 2nd condition – Irreparable injury: Petitioner must satisfy the Court that he would suffer an irreparable injury if injunction as prayed is not granted. An irreparable injury is a loss that cannot be compensated through damages, and for which there is no other relief and therefore the prayer for injunction made to the Court. Injunction works to protect the Rights and Interests of the Petitioner.
(c) 3rd condition – Balance of convenience: The Petitioner has to further satisfy the Court that he will suffer far greater irreparable injury or serious mischief if an order of injunction is not granted as compared to the injury likely to be caused to the defendant by the order of injunction.
If a prima facie case is made out but no irreparable injury would be caused to the Petitioner then Injunction will not be granted by the Court.
In Morgan Stanley Mutual Fund v. Kartick Das (1994) 4 SCC 225 the Supreme Court stipulated following factors which the Courts should weigh before granting ex-parte Injunctions –
(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.
4. Court to record reasons in writing before granting Injunction: Proviso to Order XXXIX Rule 3 of CPC (Civil Procedure Code) says that in cases where the Court decides not to give Notice of the Application to the opposite party and decides to grant ex-parte Injunction, then it is mandatory for the Court to record the reasons for doing so in writing.
In Shiv Kumar Chadha Vs. Municipal Corporation of Delhi 1993 (3) SCC 161 the Supreme Court observed –
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. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying 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……
5. Equitable relief, Not a matter of Right: In simple words, Equity means fairness. The relief of Injunction will not be granted if the Petitioner approaches the Court with unclean hands. Any suppression of material facts or documents would disentitle the petitioner from such relief. Injunction therefore cannot be claimed as a matter of Right.
6. Guidelines: In Ramrameshwari Devi & Ors vs Nirmala Devi & Ors (Civil Appeal Nos. 4912-4913 of 2011), the Honorable Supreme Court laid down guidelines and cautioned courts to be extremely careful in granting ex-parte injunction. The Court observed –
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.
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.
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.
In course of proceedings the court observed following while hearing the Amicus Curae:
- The courts have to be extremely careful in granting ad-interim ex-parte injunction.
- If injunction has been granted on the basis of false pleadings or forged documents, then the concerned court must impose costs, grant realistic or actual mesne profits and/or order prosecution. This must be done to discourage the dishonest and unscrupulous litigants from abusing the judicial system. In substance, we have to remove the incentive or profit for the wrongdoer.
- While granting ad interim ex-parte injunction or stay order the court must record undertaking from the plaintiff or the petitioner that he will have to pay mesne profits at the market rate and costs in the event of dismissal of interim application and the suit.
- Usually the court should be cautious and extremely careful while granting ex-parte ad interim injunctions. The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders.
- Experience reveals that 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. 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.
- If an ex-parte injunction order is granted, then in that case an endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the court.
- It is also a matter of common experience that once an ad interim injunction is granted, the plaintiff or the petitioner would make all efforts to ensure that injunction continues indefinitely. The other appropriate order can be to limit the life of the ex-parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex-parte injunction orders or stay orders may not find encouragement.
- We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit.
- It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.