By Dhruva Vig
INTRODUCTION
“Justice delayed is justice denied” is a legal maxim which states that if some legal redress or equitable relief is available to an affected individual/party, but is not forthcoming in a timely fashion, it is effectively of the same nature as having no remedy at all.
The Law aims at providing certain provisions and safety nets to solve the perpetual struggle of lethargic litigation process and the continuous running of time. Interlocutory Application is one such example of the remedies provided by law for an interim relief to a person.
The term “Interlocutory Application[1]” has been defined under Black’s Law Dictionary (9th Edition) as “A motion for equitable or legal relief sought before a final decision.”
The term “Interlocutory Judgment[2]” has been defined under Black’s Law Dictionary (9th Edition) as “An intermediate judgment that determines a preliminary or subordinate point or plea but does not finally decide the case. A judgment or order given on a provisional or accessory claim or contention is generally interlocutory. Also termed interlocutory decree.”
The term “Interlocutory Order[3]” has been defined under Black’s Law Dictionary (9th Edition) as “An order that relates to some intermediate matter in the case; any order other than a final order. Most interlocutory orders are not appealable until the case is fully resolved. But by rule or statute, most jurisdictions allow some types of interlocutory orders (such as preliminary injunctions and class-certification orders) to be immediately appealed. – Also termed interlocutory decision; interim order; intermediate order.”
The terms- ‘interlocutory applications’ and ‘interlocutory petitions’ are synonymous in nature with each other. The orders that originate because of such applications are referred to as Interlocutory Orders.
The Interlocutory applications are purely temporary in nature, and therefore are not related to the subject matter or main proceedings of the suit and are capable of being altered or varied by subsequent applications for the same relief, generally on proof of new facts or developments which might subsequently arise during the pendency of a suit.
Hence, those applications which are designed to preserve the status quo, which often end up arising under general circumstances, and are significant among all other interlocutory petitions, which are envisaged under Sections 75 and 95 of the Civil Procedure Code, 1908 (hereinafter as the Code) are expedient to be considered here.
Section 75 of the Code lays down the provisions for incidental proceedings while section 94 of the Code provides for provisions relating to supplemental proceedings.
Incidental proceedings/orders are those proceedings which follow as a matter of course being necessary and complementary to the main proceeding or order without which the legal matter would be incomplete or ineffective.
According to Section 75 of the Code, the Court may issue a commission subject to such conditions and limitations as may be prescribed to examine a witness, to initiate a local investigation, to examine or manage accounts, to make partition, or to hold a scientific, technical or expert investigation, or by conducting the sale of property which is subject to speedy and natural decay and to undertake any ministerial acts.
The procedure for the appointment of a commissioner for any of the purposes mentioned in the above situations, and the conditions and limitations prescribed thereafter are dealt under the provisions of Order 26 of the Code of Civil Procedure, 1908.
Supplemental proceedings are separate proceedings in an original action in which the court, where the action is pending, is called upon to exercise its jurisdiction in aid of the judgment.
The guiding principle behind Interlocutory Applications is based upon the maxim “mutatis mutandis” which means “having changed what needs to be changed”. Here, the intention of a Court while managing an interlocutory application is not to delve into the question of law, which can result in determination of the original matter, but rather grant a temporary or provisional decision on an issue.
Interlocutory Orders are of several types. Legal contentions like: – Orders of Attachment, Injunctions or Appointment of Receivers and Commissioners are generally designed to preserve the Status Quo of a pending litigation, whereas some are designed to ensure smooth, orderly, and expeditious disposal of a suit.
Applications of such nature are interlocutory in the sense that they do not decide any matter in issue arising in the pending litigation/suit, nor do they put an end to such litigation.[4]
LEGAL PROVISONS
Several definitions of the term “Interlocutory Application” have been provided under various statutes, all attempting to describe the object of such in a similar nature.
- Under Rule 2(j) of Chapter 1 of Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980 states “Interlocutory application” means an application to the court in any suit, appeal or proceeding already instituted in such court, other than a proceeding for execution of a decree or order.
Here, the term “Interlocutory Application” has been defined. Furthermore, Rules 53 to 60 under Chapter V talks about “Interlocutory Proceedings” under Code specified herein.
- A somewhat similar definition has been provided under Rule 4(i) of Chapter 1 of the Delhi High Court (Original Side) Rules, 2018 that says “Interlocutory Application” means an application in any suit, appeal or proceeding, already instituted in the Original Side of the Court, not being a proceeding for execution of a decree or order.
Furthermore, Chapter X of the Delhi High Court (Original Side) Rules, 2018 describes in detail about the provisions relating to Interlocutory Applications. Order 39 of Code of Civil Procedure (CPC) talks abouts “Temporary Injunctions and interlocutory Orders” as well. - Section 94(e) of Code of Civil Procedure,1908 provides for “Supplement Proceedings”.
“Supplemental Proceedings— In order to prevent the ends of justice from being, defeated the Court may, if it is to prescribed:
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;
(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient.”
This section talks about Supplement proceedings, which are separate proceedings in an original action in which the court, where the action is pending, is called upon to exercise its jurisdiction in aid of the judgment in action. Clause (e) talks about interlocutory orders.
- Section 141 of Code of Civil Procedure, 1908 provides for “Miscellaneous proceedings”.
“The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation – In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.”
This section talks about the provision for “Miscellaneous Proceedings” which may be instituted by a party before the relevant court regarding the suit, barring any proceeding initiated under Article 226.
- Order 39 of Code of Civil Procedure, 1908 provides for “Temporary Injunctions and Interlocutory Orders”.
Under these provisions, the court may order to grant a Temporary Injunction to restrain such an act or make such order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property, or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute pending disposal of the suit or until further orders.
The guiding principles for granting an interim injunction to any party to a suit are:
- There must be a prima facie case.
It means a bona fide contention between the parties or a serious question to be tried[5].
2. Balance of Convenience to parties.
It means weighing competing possibilities or probabilities of likelihood of injury or damage i.e., amount of substantial mischief/injury which is likely to be caused if an injunction is issued, while comparing it with inconvenience/harm which is likely to be caused to the other side if such injunction is granted by the Court.[6]
3. Irreparable Injury to any side.
This relates to avoiding any material injury that cannot be adequately compensated by way of damages but does not mean that there must be no physical possibility of repairing the injury.
All the three ingredients must be satisfied for grant of an injunction to either side in a suit.
- Section 37 of Specific Relief Act, 1963 provides for “Temporary and Perpetual Injunctions”.
- Temporary injunctions are such as are to continue until a specified time, or until the further order of the Court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908)
- A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.
This section deals with the relief provided to an affected party by a court by means of Temporary and/or Perpetual Injunctions. The provision further talks about the instances and pre-conditions where each of them can be help applicable in a pending litigation.
LANDMARK CASES
- S.V.Rao v. M.Appala Swamy[7]
Held:
Order 39 Rule 1 of Code of Civil Procedure, 1908 provides express provisions stating that the court is permitted to dispose of any Interlocutory Application by way of affidavit, and in view of the urgency involved in the matter, the standard procedure of examining the witnesses is dispensed with, and the court is given special powers to decide the matter upon the affidavits itself.
2.Union of India vs. Amrik Singh[8]
Held:
Courts generally issue injunctions in an ongoing litigation where the right/relief sought to be protected is clear and not where it is doubtful.
3. Nandan Pictures Ltd., vs. Art Pictures Ltd.[9]
Held:
A temporary injunction cannot be granted by the court to establish a new state of things/events, differing from the state of things/events which existed on the date when such proceedings were instituted before the Court.
4. Nawab Mir Barkat Ali Khan vs. Nawab Zulinquar Jahh Bahadur & Ors.[10]
Held:
The Division Bench of the Andhra Pradesh High Court on the aspect of granting, or refusing to grant a temporary injunction to any party/person to suit held as follows: “It is well settled that the grant or refusal of a temporary injunction is covered by three well established principles namely:
(1) Whether the petitioners have made out a prima facie case in the said matter, and
(2) Whether the balance of convenience is in their favour or not i.e., whether it could cause greater inconvenience/injury to them if the injunction is not granted than the inconvenience which the opposite party or persons claiming through the opposite party would be put to if the temporary injunction is granted
(3) Whether the petitioners would suffer irreparable injury/damage with the first condition, as sine qua non at least two of the conditions must be satisfied by the petitioner conjunctively and a mere proof of one of the three conditions does not entitle the petitioners to obtain a temporary injunction in their favour.”
5. Puri vs. Puri[11]
Held:
The provisions of Order 39, Rule 3 under the Code are not mandatory but directory in nature, and any non-compliance thereof, though a serious matter, does not invalidate the ex-parte injunction given by the court.
6. Mathew vs. Koshy[12]
Held:
In instances of a prima facie case: – The party seeking the aid of the Court for an injunction must establish, that the act complained of, is in violation of right of such individual, or is at least an act, which if carried into effect, will necessarily result in a violation of the right.
7. Aukkha Singh vs. Mahal Singh[13]
Held:
Prima facie cases are not to be confused with prima facie title.
8. Brajendra vs. Kashibhai[14]; Kalyanpur Lime Works vs. State of Bihar[15]
Held:
While granting or refusing to grant temporary injunction to any party or individual, mere prima facie case is not sufficient and further the Court has to see the balance of convenience to the parties of the suit.
9. Chandidat Jha vs. Padmanand Singh[16]; Moran vs. River Steam Navigation Co.[17]
Held:
In the case of granting temporary injunction, the Court must be satisfied that there is a fair and substantial question to be decided regarding the rights of the parties and that there exists a bona fide contention between such parties as well.
10. Gordon vs. Cheltenliam Railway[18]
Held:
The granting of temporary injunction is a discretionary relief in its essence. The conduct of the parties also always has been considered an important relevant factor in deciding whether temporary injunction is to be granted or not in the circumstances of the case in question.
11. Suranna vs. Somulu[19]
Held:
The language of Order 39, Rule 1 of Code of Civil Procedure, 1908 is wide enough to include an order in the form of a mandatory injunction upon an interlocutory application by such a power, however, must be exercised in very rare cases and with due care and caution.
12. Smt. Indravati Devi vs. Bulu Gosh[20]
Held:
It is a well settled law that the Court can grant temporary injunction in the interest of justice under inherent powers, though not covered by Order 39 Rules 1 and 2 of Code of Civil Procedure, 1908. An order of temporary injunction can be implemented by seeking police aid under the inherent powers as well. Temporary injunction cannot be granted even under inherent powers by a small cause Court.
Courts power to grant injunctions is not confined to Order 39, Rules 1 and 2 of Code of Civil Procedure, 1908, and in appropriate cases injunctions can be granted exercising inherent powers. In exceptional circumstances Court can grant injunction in exercise of inherent powers though not covered by situations envisaged by Order 39, Rules 1 and 2 Code of Civil Procedure, 1908.
13. Sub-Committee of Judicial Accountability v. Union of India[21]
Held:
The apex Court held that it shall refuse to entertain an Interlocutory Application or passing of any Interlocutory Order, if such an application or order has the implication of pre-judging the main matter of the pending litigation.
CONCLUSION
Interlocutory Applications are a special tool that can be helpful to both the courts and parties involved to deal with matters requiring urgent consideration, be it any application for temporary, or for the purposes of payment into court, or security for maintaining a cause.
The intention of such provision remains the same throughout, irrespective of the applicability. In view of the above discussion, it shows that filing of interlocutory applications in the proceedings before a Court is a common and important practice, and it should be the duty of the Courts to dispose the said applications expeditiously to proceed with the main subject matter at hand.
The orders passed in interlocutory applications though may not be elaborate, but they shall not be cryptic, and they should be passed with sound reasoning which due regard to established legal principles.
- Black’s Law Dictionary 9th ed., pg. 889 “interlocutory application” ↑
- ibid pg. 919 “interlocutory judgement” ↑
- ibid pg. 1207 “interlocutory order” ↑
- Arjun Singh v. Mohindra Kumar (AIR 1964 SC 993) ↑
- United Commercial Bank Vs Bank of India (AIR 1981 SC 1426) ↑
- Dalpat Kumar v. Prahlad Singh reported in 1992 (1) SCC 719 ↑
- S.V.Rao v. M.Appala Swamy (AIR 1970 A.P 103) ↑
- Union of India vs. Amrik Singh (AIR 1963 Punjab 104) ↑
- Nandan Pictures Ltd., vs. Art Pictures Ltd. (AIR 1956 Cal 428) ↑
- Nawab Mir Barkat Ali Khan v. Nawab Zulinquar Jahh Bahadur (AIR 1975 A.P. 187 at 190) ↑
- Puri vs. Puri (AIR 1994 J &K 25) ↑
- Mathew vs. Koshy (AIR 1966 Mys. 24) ↑
- Aukkha Singh vs. Mahal Singh (AIR 2003 Raj. 21) ↑
- Brajendra vs. Kashibhai (AIR 1946 Pat. 177) ↑
- Kalyanpur Lime Works vs. State of Bihar (AIR 1951 Patna 226) ↑
- Chandidat Jha vs. Padmanand Singh (ILR 12 Cal. 459 9) ↑
- Moran vs. River Steam Navigation Co. (14 BLR 352) ↑
- Gordon vs. Cheltenliam Railway (AIR 1996 Delhi 1) ↑
- Suranna vs. Somulu (AIR 1969 AP 368) ↑
- Smt. Indravati Devi vs. Bulu Gosh (AIR 1990 Patna 1) ↑
- Sub-Committee of Judicial Accountability v. Union of India [(1992) 4 SCC 97 at page 98] ↑
