Ad interim relief in
Code of
Civil Procedure
Prajval Albuquerque
The
provision of Ad interim relief is contemplated in ORDER XXXIX which reads as Temporary Injunction and
Interlocutory Orders. For the purpose of this post I have not gone into the
detailed explanation of this order but rather have looked at it from the
perspective of Judicial Interpretation to the principle of Ad interim Relief as
in this order
1.
Ad interim relief in civil
proceedings:
To
grant an ad interim relief it must be brought before the court that first of
all there is a case prima facie in which one party seeks relief before granting
an ad interim relief . That is the party which is claiming this relief must
first of all prove that there is a case. Only then can the court grant relief
to the party seeking it without listening to the other party as per R.2 of
Order 39 and its interpretation in the case:
1) Shiv Shanker Goyal And Ors. vs The
Municipal Council, Ajmer on 15 January, 1997
Equivalent citations: AIR 1997 Raj 176
Bench: S K Sharma.
In this case the Judge held that
wherever a plea for interim relief is made it is the responsibility of the
person claiming such relief that prima
facie there is a case hence from this we may conclude that same is
applicable to even while seeking ad interim relief the person claiming so must
prove that a prima facie case exists.
2)
D. Dwarkanatha Reddy v. Chaitanya Bharathi Educational Society, AIR 2007
SC1794
2007 6 SCC 130
In
the above mentioned case:
where the right of the plaintiff to vote in
the meeting of a society was violated an interim relief was granted to them.
Hence the question is not only about there being a case prima facie but when an
immediate right has been violated and it must be
redressed to avoid further damage to the rights of plaintiff.
From
this we may also conclude that the ad interim injunction will only be granted
when the damage caused is irreparable
and the balance of Status quo will be affected. Only then can ad interim relief
be granted.
2.
Ad interim relief in civil
proceedings when can it be vacated?
I.
An ad interim order can be vacated when the defendant proves that prima facie there is no
case. There are two different ways of interpreting the term prima facie case in
one context it refers to the maintainability of the case. Here however it
relates to the right of pleader over such property.
The ad interim order can be vacated when there is no prima facie case was observed in the case :
1) Shiv Shanker Goyal And Ors. vs The
Municipal Council, Ajmer on 15 January, 1997
Equivalent citations: AIR 1997 Raj
176
II.
It is merely not sufficient to have a prima facie case when an ad interim relief is pleaded. It can
be vacated when a conclusion
was arrived on the point that non passing of such an order would not
result in irreparable injury as was held in the case of:
2)
Lark Laboratories (India) Ltd. v.Medico Interpharma Ltd.
AIR 2002 Guj 368.
III.
Besides this such order may
also be vacated where the non-passing of this order would not have
resulted in shift of balance of
convenience and neither would status quo be disturbed. As was held in the case
of:
3)
Veermani Roy & Kutty v. Ansal properties and Industries Ltd.
AIR 2003 Del 158.
3.
Appeal for Vacating ad
interim relief:
When the
opposing party against whom an ad
interim order has been passed it may approach the High Court. Generally a party
in n civil case may approach the High Court by an Appeal or if the appeal is
against an order then Appeal from order or Civil revision application or Writ
petition but the question is to vacate an ad interim order which procedure is
applicable. However it must be remembered
that once an appeal has been accepted against and order passed with regards to
any appeal passed against order under O. 39, R.1 then any further appeal is
barred as per S. 104 (2) of CPC.
4.
Ad interim Relief and Writ
petition:
A writ petition
cannot be made as per A.32 as it can be applied to only for violation of
fundamental rights and where an ad interim injunction is passed it does not
construe to be an violation of fundamental rights under chapter III of Indian
Constitution however if it does violate then a
writ petition under A.32 can be made . A.226 has a wider jurisdiction
than A.32 and a remedy can be pleaded
before the High Court even if it does not violate the Fundamental rights as in
Chapter III of Indian Constitution but to file a petition under A.226 there
must be no other remedy available only then can writ jurisdiction of High Court
can be invoked. In a case where an ad interim injunction needs to be vacated a
remedy exists under O. 43 R 1 (r). Hence a writ petition cannot be made as per
A.226
5.
Ad interim Relief and Civil
revision application:
A revision application can only be made against any
judgment from any lower court subordinate to the High Court. from which no
appeal lies to the High Court or to any subordinate court. In case
of vacating of an ad interim injunction order an appeal can be made as per
O.43, R.1 (r). Hence as per the first point under this heading vacating of an ad interim injunction becomes
an exception so an appeal for vacating an ad interim injunction cannot be filed under Civil revision
application.
6.
Ad interim Relief and Appeal
from order:
The
appeal against any order granted for injunction which includes ad interim
injunction under O. 39, R.1 is
appealable under O.43 R.1 (r). However
any order under O.39, R.1 not granting
any injunction is not appealable under O.43, R.1 (r) as was held in the
cases of :
Lokhai v. Ram Niwas,
AIR 1987 All345
And
Urmilla Devi v. Nagar Nigam Lucknow,
AIR 2003 All 158:
All LJ 1324
( Lucknow Bench)
Note:
i)
Details with regards to effect of O.43 on O.39, R 3 is
not discussed here as it pertains to notices to be given with regards to
notices on injunction and in case of ad interim injunction the question of
notices does not arise.
ii)
The appeal made as per O.43 R 1 (r) shall be
discharged as per O.39 R 4
