While the Specific Relief Act deals with perpetual & mandatory injunctions, CPC deals with temporary injunctions.
Temporary injunction dealt under Order 39 CPC can be granted even “ex parte”. Usually, at that stage, it is called interim injunction. When court hears both sides and orders interim injunction, it is known as temporary injunction.
Order 39 is a provision put to use day in and day out in every civil court, whether it is trial court or appellate court. It has been resorted to for a variety of reliefs.
It is quite common to ask for temporary injunction to restrain a defendant from interfering with the peaceful possession and enjoyment of the plaintiff over immovable property.
Many a time, temporary injunction is sought for to restrain the defendant from alienating the properties.
Sometimes even temporary mandatory injunction is claimed to force the defendant to perform an act pending disposal of the suit such as asking him to close a drain to stop drain water flowing into plaintiff’s site.
Order 39 Rules 1 & 2 CPC provides for grant of temporary injunction while Order 39 Rule 4 provides for vacation of a temporary injunction already granted. Volumes are written on temporary injunction. It may be examined however briefly here.
Temporary injunction being an interim relief (pending main suit) it is claimed by an interlocutory application in the shape of a petition accompanied by an affidavit.
Order 39 Rule 3 points out that ordinarily temporary injunction shall be granted only after giving notice to other side and after hearing both sides.
However, it provides for an exception viz., where delay may defeat the object of grant of temporary injunction. For instance, the Municipality issues a notice to a landlord A that his house would be demolished after 48 hours of time.
When A approaches court by a suit and asks for a temporary injunction, if court orders notice, the Municipality may go ahead with demolition work. In such a case, Order 39 Rule 3 CPC empowers the court to go to the rescue of A by granting interim injunction pending disposal of temporary injunction application.
Where interim injunction is ordered without notice, the plaintiff shall send to the defendant, in registered post, the copies of petition, affidavit, plaint and documents relied upon by the plaintiff.
These papers shall be sent on the same day or on the very next day after grant of interim order (Order 39 Rule 3 proviso). If the provisions of Order 39 Rule 3 Proviso CPC are not complied with by the plaintiff, the very interim order becomes invalid and the defendant may act as though no interim order is operative against him.
In practice, courts insist upon the plaintiff or the counsel to file, on the next working day after the date of order, proof of compliance of Order 39 Rule 3 proviso by producing the postal receipt. If the next day after interim order happens to be a postal holiday, next postal working day is taken note of by the court for compliance of Order 39 Rule 3 proviso of CPC. The procedure is that after the order is passed on the compliance of the mandatary performance as stated above, and on the production of the postal receipt, the court issues the interim injunction orders to be served on the other side.
There are certain decisions pertaining to interim injunction pointing out the principle that the court should be convinced of before granting temporary injunction.
In Nawab Mir Barkat Ali vs. Nawab Zulfiquar AIR 1982 A.P. 384, the court held that the petitioner shall (i) make out “prima facie” case (ii) show that balance of convenience is in his favour and (iii) show that he would suffer irreparable loss if temporary injunction is not granted in his favour. Further, the first condition being “sine qua non”, the plaintiff must prove one of the remaining two conditions for grant of temporary injunction.
In respect of prima facie case, it was held in K. Karunanidhi vs. R. Ranganathan Chettiar AIR 1973 Mad 443 that prima facie case does not mean the thorough examination of the rival claims by the court.
This is so because the scope of enquiry in an interlocutory application like a petition for temporary injunction is limited and not exhaustive as in the case of a suit.
It was observed in M.K. Dasappa vs. G. Ramachandra: AIR 1976 Kant. 53 that in deciding prima facie case the court is to be guided by the apparent strength or otherwise of plaintiffs case as revealed in the affidavits or other material. In Deity Kashiswar Mahadev vs. Gram Sabha: AIR 1973 H.P. 2, the court pointed out that the plaintiff need not prove his title to the property in temporary injunction petition and that it is enough if the plaintiff can show that he has a fair question to raise as to existence of right of which he alleges and can satisfy the court that the property in dispute should be preserved in its present actual condition until such question is disposed of.
Balance of convenience is the inconvenience of the plaintiff which shall far exceed the convenience of his opponent in the event of refusal of the relief. Irreparable loss is the loss the plaintiff suffers if order is not granted to him and that the loss would be such that it cannot be compensated monetarily or otherwise.
Temporary injunction can be claimed against all or against a few defendants only, depending upon the fact as to who is interfering with the rights of the plaintiffs.
It is not uncommon for asking for and obtaining temporary injunction against a person who is not a party to the suit, also where the situation so demands. It has been referred to as plaintiff in these pages for the sake of convenience only since it is open not only for the plaintiff but for the defendant also to seek for temporary injunction in appropriate cases.
Once a temporary injunction is granted, it is open to the defendant to ask the court to vacate the same, in appropriate cases, on the ground of changed circumstances [Order 39 Rule 4], Temporary injunction has great legal sanctity. Once a person is temporarily injuncted from doing an act, the person suffers penal consequences if he violates the order.
D. Receivers :-Though there is no embargo for appointment of a receiver by District Munsiffs, the provisions relating to Receivers provided by Order 40 CPC are more often put to use in sub courts in view of the fact that stakes are high in sub-courts. Chapter 17 of A.P. Civil Rules of Practice from Rule 286 to Rule 293 also deal with Receivers.
Under Civil Rules of Practice, each Civil Court shall prepare a panel of receivers from the advocates of the local bar association.
The panel shall be sent to the District Judge for approval. The District Judge approves the panel only after the enlisted persons furnish security or deposit of Rs. 2,000/-. Whenever the court allows a receiver petition, it shall appoint one person out of the approved panel of receivers only. Courts cannot appoint a person other than from the approved panel.
A receiver shall open a bank account as receiver and shall deposit amounts received by him in that account, except where he has to deposit the amounts straight into court.
A receiver shall submit his accounts to court once in three months and even for shorter periods if the court so directs. The failure to do so may lead to penal consequences, disbarment and even imposition of interest on such amounts in respect of which proper accounting is not made.
Order 40 Rule 1 CPC contemplates the appointment or removal of a Receiver by the court, at any stage of the proceedings including after the decree, if the court considers it just and convenient.
Appointment of receiver is an extreme step and courts are slow in ordering receivership.
P.N. Ramaswamy J. prescribed five principles in Krishna Swamy Chetty vs. Thangavelu Chetty : AIR 1955 Mad 430. The learned judge called them PANCHA SADACHAR.
The decision withstood the test of the day and holds good even now, in all States. His view may be summed up as follows:
(i) It is a matter resting in the discretion of the court for the purpose of protecting the rights of all parties and the subject-matter;
(ii) The court should not appoint a receiver except upon proof by the plaintiff that “prima facie” he has an excellent chance of success in the suit;
(iii) Not only the plaintiff must show a case of adverse and conflicting claims to property, but he must show some emergency or danger or loss demanding immediate action and of his own rights he must be reasonably clear and free from doubt;
(iv) An order will not be made where it has the effect of depriving a defendant of a “de facto” possession since that might cause irreparable wrong; the position however may be different if the property is shown to be “in medio” that is to say in the enjoyment of none; and
(v) The court should look to the conduct of the party who makes the application who must come to court with clean hands ;
The five ingredients are the just and reasonable causes for appointing a receiver. One of the commonest causes in which courts appoint receivers is that there is scramble between the plaintiff and the defendant for possession over the property in dispute.
The possession of the property with the receiver is the possession on behalf of the person who the court ultimately finds to be the person entitled to the possession. The court is empowered to discharge a receiver and appoint another person as receiver in cases where the receiver expresses his inability to discharge the functions, or where either party makes “bona fide” allegations against the receiver.
In brief, these are the four major incidental proceedings to a suit or appeal viz., commission, attachments, injunctions and receivers.
12. Proceedings in the Suit:-A suit is instituted by filing a plaint. Summonses are issued to the defendants. The defendants appear pursuant to summonses. The defendants file written statements. Issues are settled on the basis of pleadings and documents. Incidental proceedings like issue of commissions, temporary injunctions, receivers may take place. The summoning of documents, inspection of documents, examination of parties at the first hearing and interrogatories stages conclude. The case actually reaches trial stage.
The Judge fixes a date for hearing. What actually transpires at the hearing is recorded in Order 18 CPC. The first question is as to who shall begin the case.
It is not plaintiff who begins the side, as a rule in all cases. Order 18 Rule 1 points out that the plaintiff shall begin the case unless the burden is on the defendant.
In other words, the person upon whom the burden lies shall have the right to begin. In all cases, the burden is not necessarily on the plaintiff. For example, in a simple pronote case the defendant may deny executing the pronote or may admit execution but contending that the pronote is not supported by consideration fully or partly. Section 118 of Negotiable Instruments Act draws presumption, that any Negotiable Instrument is supported by consideration and is dated on the date mentioned on the instrument, once the execution of the instrument is established. So, where the Defendant contends that he executed the pronote but consideration did not pass in full or in part, the burden is on the Defendant to prove that the pronote is not supported by consideration. Indeed the issue the court settles in such a case is “whether the suit pronote is not supported by consideration?” indicating that the burden is on the defendant. Suppose it is the only issue in the case, it is the defendant who shall begin the case.
On the other hand, suppose there are several issues, and burden in respect of some issues is on the plaintiff and for some issues the burden is on the defendant, it is the plaintiff who shall begin the case. The plaintiff has a choice in such a situation. He may let in evidence on the issues in respect of which burden lies on him, leaving it open to let the defendant to let in his evidence in respect of issues where burden is on the defendant.
After the person upon whom the burden lies completes his side, the opposite side has a right to let in evidence on his side. Suppose the party let in evidence on only a few issues as his burden lies on those issues only. He has a right to let in evidence on other issues after the other side let in evidence. However, this is a complicated procedure. Hence, in practice, where the burden is on the plaintiff on some issues, usually the plaintiff lets in evidence on all issues. The advantage of this mode is that the plaintiff has a chance of rebutting defence case after defence side is over.
After both sides let in evidence the party who began has a chance to let in rebuttal evidence, to rebut the case of the opposite side. Whether the plaintiff begins or the defendant, the witnesses of the plaintiffs side are described as P.Ws [plaintiff’s witnesses] and defendant’s witnesses are called D.Ws [defence witnesses]. If the court has occasion to examine any witness on its own, such a witness becomes C.W. [Court witness] (vide Civil Rules of Practice). The CRP also provides the mode of exhibiting or marking documents. Documents marked by plaintiffs side are called Ex A 1, Ex A 2 etc., (Exhibit A 1, etc.,) and documents marked by the deference are called Ex B 1, Ex B 2 etc., (Exhibit B 1 etc.,) The court may mark documents on its own. If they are court documents, they are exhibited as Ex C 1, Ex C 2 etc., That apart sometimes, documents are marked by persons not connected to the suit, called third parties. The documents exhibited by third parties are exhibited as Ex. XI, Ex. X2, etc.
Prior to 1976, the rule as to who should be examined first on each side did not exist. Through comprehensive amendments to CPC in 1976, Rule 3 A of Order 18 is incorporated. Order 18 Rule 3-A envisages that when a party wants to give evidence (depose) apart from examining other witnesses, the party shall give evidence before he examines other witnesses on his behalf. If the party examines other witnesses first, he loses the right to examine himself later. However, in appropriate cases, a party may obtain permission of the court to examine any witness before the party deposes. It usually occurs in cases where a witness has to speak of introductory facts before the party deposes.
Suppose there are more than one defendant in a suit, let us assume that there are four defendants. Suppose all the four defendants want to depose. The interest of all the defendants may be common or conflicting. In either event, the defendant must depose in the same order in which they are arrayed. That is, the first defendant must depose first, the second defendant next, the third defendant there after and fourth defendant lastly. It is not open for the second defendant to depose first if the first defendant also is to depose. The moment the second defendant deposes, the right of the first defendant to depose is lost.
The evidence recorded by the court is known as “deposition”. The court records the evidence in the language of the court. The CRP provides that English and Telugu are languages of the court in all districts of Andhra Pradesh. That apart, Kannada, Tamil, Oriya and Marathi are also provided as languages in certain boarder districts like Kurnool, Chittoor, Srikakulam and Adilabad respectively. Though Order 18 Rule 5 provides that the evidences can be recorded in the language of the court, in practice, evidence is always recorded in English in all Civil Proceedings in the State (except while recording the sworn statement of a petitioner in indigency proceedings covered by Order 33 CPC).
The evidence is recorded in narration form and not in question and answer form. But, the Court may record any part of the evidence in question and answer form as and when the court deems it fit and proper.