Or.39, rule 1 and 2 – Sec.38 of the Specific Relief Act
Order 39 Rule 1 :
1. 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 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 by 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 disposition 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.
ad interim injunction means is an order that is going to be passed by the court at the time of granting exparte interim injunction till date or till disposal of interlocutory application
[ The dictionary meaning of ad interim = for an intervening or temporary period of time. = temporary.]
38. Perpetual injunction when granted.
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:—
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
The dictionary meaning of the word perpetual = never ending or changing synonyms:– everlasting, never-ending, eternal, permanent, unending, endless, without end, lasting, long-lasting, constant, abiding, enduring, perennial, timeless, ageless, deathless, undying, immortal; More
[Gaddipati Sambrajyam And Anr. vs Panguluri Mahalakshmamma And … on 2 December, 1994 Equivalent citations: 1995 (1) ALT 305 -B.K. Somasekhara, J.]
Chapter VII of the Specific Relief Act, 1963
From Sections 36 to 42 deals with injunction generally.
Section 37 concerns temporary and perpetual injunctions.
Section 38 enumerates as to when perpetual injunction can be granted and
Section 41 enumerates as to when injunctions can be refused.
Section 37 (1) explains temporary injunctions as to continue until a specified time or until further orders of the Court and that they may be granted at any stage of the suit and are regulated by the Code of Civil Procedure. Similarly permanent injunction or perpetual injunction is explained in Section 37 (2).
Order 39 of the Code of Civil Procedure deals with temporary injunctions and interlocutory orders.
There is no scope to confuse between temporary injunctions and interlocutory orders and the permanent reliefs of such nature to be granted under the Specific Relief Act or under any other law.
Since the fundamentals about the implications of the temporary injunction and orders in the nature of temporary injunction are settled at least for over a century, they could be neither questioned nor could be elaborated in meticulous detail with research or discovery and since such principles are already codified by authoritative pronouncements in the precedents, they may be conveniently noted in brief as follows:-
The grant or refusal of a temporary injunction is covered by three principles viz.,
(1) if the plaintiff has made out a prima facie case,
(2) if the balance of convenience is in his favour i.e., it would be greater inconvenience to the plaintiff if the injunction is not granted than the inconvenience which the defendant or persons claiming through him would be put to if the temporary injunction is granted and
(3) if the plaintiff suffers irreparable injury.
The fact that the plaintiffs have made out a prima facie case, does not necessary mean that a temporary injunction can be issued.
The meaning of ‘prima facie case’
should not be too much stretched to land in the loss of real purpose, 1. N.D. Basu’s Law of Injunctions (Fourth Edition).. The very expression ‘prima facie case’ is to look into the matter on the face of it not to do well into it.
‘Prima facie’ means – at first sight; on the first appearance; on the face of it; so far as can be judged from the first disclose; presumably; a fact presumed to be true unless disproved by some evidence to the contrary (Black in Venkataramaiya’s Law Lexicon Vol. 4 Second Edn.).
For example :-
when the plaintiffs depended upon their possession of the suit properties based upon a will, the Court was expected only to know whether there is a will and on the face of it, whether the plaintiffs would have come into possession of the suit properties.
Because the defendants set up earlier will to base their possession, the Court was to find out whether on their face value they could have been accepted.
The other circumstances namely, payment of assessment or land revenue by the parties, report to the Village Officers about their respective wills, cultivation of the land or the occupation of the residential house, the voters’ list, the ration card etc., are all again prima facie circumstances to support such a prima facie case of possession based on will.
The investigation into the execution of the will registration, coming into possession in law etc., are all matters touching the merits of the case.
Even the suspicious circumstances in regard to the will like the writings, the mental state etc., of the testator and all the surrounding circumstances are to be examined prima facie and not in meticulous detail like a trial where the parties will have opportunities to examine witnesses, cross-examine them and rebut certain circumstances appearing from such materials.
Therefore, the precedents appear to have settled the manner in which the prima facie case has to be examined in a case like this.
“The rule that before the issue of temporary injunction, the Court must satisfy itself that the plaintiff has prima facie case, does not mean that the Court should examine the merits of the case closely and come to a conclusion that the plaintiff has a case in which he is likely to succeed. This would amount to prejudicing the case on its merits. All that the Court is to see that on the face of it the person applying for an injunction has a case, which needs consideration and which is not bound to fail by virtue of some apparent defects. The probability of right is sufficient to sustain an injunction”. (Page 72 of Basu’s Law of Injunctions supra). The purpose of such a prima facie enquiry is explained as: ‘In many cases “……In many cases the Court would interfere to preserve the property in status quo during the pendency of the suit in which the rights to it were to be decided, and that, without expressing and often without having the means of forming, any opinion as to such rights; that it was true the Court would not interfere if it thought that there was no real question between the parties but that seeing there was substantial question to be decided, it would preserve the property until such question could regularly disposed of; and that in order to support an injunction for such purpose, it was not necessary for the Court to decide upon the merits in favour of the plaintiff; and that if the bill states a substantial question between the parties, the title to the injunction may be good, although the title to the relief prayed for might ultimately fail”. (Joyce’s Doctrines 29, Quoted at page 72-73 of Basu’s Law of Injunctions supra).
These principles appear to have been incorporated with approval in various precedents of the High Courts of Madras, Kerala, Delhi, Punjab, Karnataka, Himachal Pradesh and Madhya Pradesh. (Pages 1090 and 1091 of CPC by A.N. Saha, 3rd Edn.).
Our own High Court has laid down in Firm Ram Kishun Shah Itwari Sahu v. Jamuna Prasad, AIR 1951 A.P. 469. that the real point, upon an application for temporary injunction, is not how the question ought to be decided at the hearing of the case, but whether there is a substantial question to be investigated and whether matters should not be preserved in status quo until that question can be finally disposed of. The fundamental of the principles governing temporary injunction are elaborated in the above terms by our own High Court in more than one precedent viz., Nawab Mir Barkat Ali Khan v. Nawab Zolfiquar Jah Bhadur, 1975(1) An.W.R. 32. Iruvaram Jayamma v. Padmavathamma, 1978(2) An.W.R. 308. Chintapatla Arvind Babu v. Smt. K. Balakistamma, .
According to our own High Court all the three conditions are to be established to grant an. order of injunction, and the mere proof of one is insufficient.
In sum and substance, the settled law regarding prima facie appears to be that merits of the case should not be examined closely, deeper examination of the controversies is impermissible, stands of the parties are not to be proved in such a manner to give a final decision, in discharging a prima facie case, the plaintiff need not establish title, it is only if he can show that he has a fair question to raise as to the existence of the right which he alleges and ultimately, the Court should be guided by the principles of equity.
The settled law appears to be that an order under Order 39 Rules 1 and 2 of CPC is discretionary based upon the facts and circumstances of each case.
In other words, such a discretion vests with a Court dealing with an equitable remedy called judicial discretion.
The Supreme Court time and again reminded the Courts of such a principle so as to impress that such discretionary exercise of the powers should not be interfered with by the appellate Courts.
In The Printers (Mysore) Pvt. Ltd. v. Pothan Joseph, ; the Supreme Court pointed out:
“…………As is often said, it is ordinarily not open to the appellate Court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the appellate Court that in exercising its discretion the trial Courts has acted unreasonably or capriciously or has ignored relevant fact and has adopted an unjudicious approach, the it would certainly be open to the appellate Court and in many cases it may be its duty to interfere with the trial Court’s exercise of jurisdiction”.
In Uttar Pradesh Co-operative Federation Ltd. v. Sunder Bros, Delhi, the Supreme Court had to deal with the discretion vested in the Court as:
“……The appellate Court would be slow to interfere with the exercise of their discretion. In dealing with the matter raised before it at the appellate stage, the appellate Court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it may have come to a contrary conclusion. If the discretion has exercised by the trial court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify such interference with the trial Court’s exercise of discretion. If it appears to be appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts, then it would be open to the appellate Court to interfere with the trial Court’s exercise of discretion”.
The Privy Council has long back as in 1920 cautioned that the mere possibility of the appellate Court coming to a different conclusion on the same facts and evidence will not justify interference vide Wazir Sunder Singh v. Musammat Farida Khannam, AIR 1920 P.C. 132. Therefore, following such principles the High Court of Mysore in Rangamma v. Krishnappa, AIR 1965 Mysore 310 = 1968 (1) Mysore L.J. 552 pointed out and put the principle in brief:
“………Granting or refusal of temporary injunction rests on the sound exercise of discretion by the trial Court. Such exercise of discretion cannot be lightly interfered with by the appellate Court, unless it is shown that such exercise of discretion is unreasonable or capricious. That a different view was possible on the facts and circumstances of the case by itself, will not be sufficient to interfere with the order”.
Based on the precedents of the Supreme Court and various High Courts, the High Court of Karnataka in Lalithakshi Anandamgouda v. Sadnshivnppa Basappa Patil went to the extent of saying that the appellate Court has no jurisdiction to interfere with the discretionary order passed by the trial Court.
In view of Order 39 Rule 1 of C.P.C. and also Order 19 Rule 2 of CPC Order 39 Rule 1 of CPC specifically mentions the use of affidavits or affidavits to prove the ingredients of (a) to (c) of the provision, whereas Rule 2 of Order 39 of CPC conspicuously omits to do so.
That is why in Saknlabatula Vykunta Rao v. Made Appalaswamy, our own High Court authoritatively held that in deciding an application under Order 39 Rule 1 of CPC in view of the urgency involved, the Court is expressly authorised to decide the point on affidavits. It was also held therein that Order 19 Rules 1 and 2 do not arise at all.
The scope and the implication of the rule is thus stated therein:
“…….In view of the urgency involved in the matter, the regular procedure of examining the petitioner and his witnesses and respondent and his witnesses is dispensed with and the Court is given a special power to decide the matter by affidavits. Further the scope of enquiry is quite limited and the rights of parties are not decided finally. That being the purpose of giving special power to the Court under Order 39 Rule 1, the question of summoning the deponent for the purpose of cross-examination at the instance of a party under Order 19 Rules 1 and 2, does not arise at all. The power given to the Court under Order 39 Rule 1, to decide the matters by affidavits is unfettered and is not subjected to the provisions of Order 19 Rules 1 and 2. In short, the provisions of Order 19, Rules 1 and 2 have no application at all to interlocutory matters governed by Order 39 Rule 1”.
It is apparent that the Court was dealing with the proof of facts by affidavits only with reference to the applications under Order 39 Rule 1 of C.P.C.
The question whether Order 19 Rules 1 and 2 is applicable to interlocutory applications was not the subject matter of the decision muchless that is considered.
It is also clear that the absence or use of affidavits for injunctions under Order 39 Rule 2 CPC was not considered in the decision supra.
Therefore, it appears that the matter was not exhaustively dealt with muchless any decision is rendered on that question.
Therefore, in the context of what has been done in the present case by the two Courts below, this Court has felt the necessity to elaborate the legal position regarding use of affidavits in such situations.
The law appears to be that affidavit is no evidence since it is not included in the definition of ‘evidence’ Under Section 3 of the Evidence Act and it is specifically excluded by Section 1 of the Evidence Act.
But the Courts may permit the proof of any fact by means of affidavit under Order 19 Rules 1 and 2 of C.P.C.
The precedents of various High Courts appear to be in favour of such a general rule (Page 15 of Sarkar on Evidence).
To understand the true and correct legal implications about the use and value of the affidavits, Order 19, Rules 1 and 2 of CPC may be repeated thus:
“Power to order any point to be proved by affidavit:
1. Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.
Power to order attendance of deponent for cross-examination.
2. (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs”.
The implications of Order 19 Rules 1 and 2 of CPC in relation to the affidavits appear to have been exhaustively dealt with in B.R. Vishwanath Singh v. Shivalingaiah, . Therein a clear distinction between Rules 1 and 2 of Order 19 of CPC is noted. Affidavits contemplated in Rule 1 are affidavits taken by way of evidence in order to prove particular fact or facts. Prove or proof in the sense in which that word is used in Rule 1 means final proof and not prima facie proof. Such a distinction is drawn from the expressions of the learned author Sarkar as follows:
“……….Prima facie evidence only means that there is ground for proceeding, it is not the same thing as ‘proof which comes later when the Court has to find whether the accused is guilty. Because a Magistrate has found a prima facie case to issue process, it is a fallacy to say that he believes the case to be true in the sense that it is proved. Prima facie evidence which if accepted appears to be sufficient to establish a fact unless rebutted by acceptable evidence to the contrary. It is not conclusive”.
That is how whenever a fact is permitted to be proved by means of an affidavit of a witness if the other side desires that such a witness should be produced before the Court for cross-examination, the Court should not accept that evidence given in the form of affidavit. That is why in the proviso to Rule 1 it is stated that an order shall not be made authorising the evidence of such witness to be given by affidavit. But that is not the case in regard to Rule 1 of Order 19 of C.P.C. The distinction of the two rules is marked by the learned Judge in Vishwanath Singh’s case (12 supra) as follows:
“…….Here a discretion vests in the Court both in the matter of taking evidence by way of affidavits and also in ordering the attendance of those persons for cross-examination. Further, if Rule 1 contemplates affidavits in proof of facts Rule 2 contemplates affidavits in support of or against applications. It is true that there are provisions in the Code and in several statutes providing for filing of applications claiming substantive reliefs. Any relief finally granted in such cases can be said to have been given on a particular fact or set of facts proved. To such cases, it can be said, Rule 1 is attracted. But Rule 2 which does not contemplate any such proof of fact or facts may be construed as one applicable only to applications claiming interim reliefs like a temporary injunction, appointment of a receiver. appointment of a guardian ad litem and the like”.
Therefore, it is apparent both from the provisions supra and also the case law on the question that notwithstanding any provision of CPC or similar law contemplates for proof prima facie, affidavits may be permitted to be produced under Order 19 Rule 2 of CPC provided the proof contemplated is only prima facie and not the proof on merits, in which case a party may desire the deponent of the affidavit to be produced before the Court when the Court may not use the affidavit by way of evidence or it can call such witness for cross-examination by the adversary. This supplements the absence of use of affidavits in any provision like Order 39, Rule 2 of CPC by virtue of Order 19 Rule 2 of CPC and not otherwise.
To conclude, the law appears to be square on the question that affidavit is no evidence in view of Section 1 of Evidence Act, but it assumes the character of evidence for certain purposes as stated above in view of Order 19 Rules 1 and 2 of CPC and also in view of the definition of ‘evidence’ Under Section 3 of the Evidence Act which reads thus:
“Evidence” means and includes –
(1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence:
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence”.
An affidavit can be brought within the definition of ‘document’ under the same provision and therefore, such a document if permitted to be produced by the Court would be evidence, however, subject to the limitations under Order 19, Rules 1 and 2 of C.P.C.
- [A. VENKATASUBBIAH NAIDU V. S. CHELLAPPAN & ORS  INSC 484 (19 September 2000)]
Order 39 Rule 1 says thus:
1. 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 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 by 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 disposition 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.
It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule.
In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit.
Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be applicable as indicated in Order 43 Rule 1 of the Code.
The choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief.
an order granting injunction without complying with the requisites envisaged in Rule 3 of Order 39 be void.
Rule 3 reads thus: The Court shall in 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 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, 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 the 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.
What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in clauses (a) & (b) of Rule 3 of Order 39.
In our view such an Order can be deemed to contain such requirements at least by implication even if they are not stated in so many words.
But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk.
Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it.
The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party.
A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party.
The Rule does not say that the period of the injunction order should be restricted by the Court to thirty days at the first instance, but the Court should pass final order on it within thirty days from the day on which the injunction was granted.
Hence, the order does not ipso facto become illegal merely because it was not restricted to a period of thirty days or less.
Nonetheless, we have to consider the consequence, if any, on account of the Court failing to pass the final orders within thirty days as enjoined by Rule 3-A.
The aforesaid Rule casts a three-pronged 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.
What would happen if a Court does not do either of the courses?
We have to bear in mind that in such a case the Court would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter.
First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure.
Second is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days.
Here also it is only in very exceptional cases that the Court can by-pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer.
It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law.
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.
cannot he approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction.
In such circumstances 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. 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.