EX-PARTE ORDER OF INJUNCTION - GUIDELINES BY SC
The Apex Court in Morgans Stanley Mutual Fund v. Kartick Das2 laid down the factors which should weigh with the Court in the grant of ex parte injunction and the said factors are as follows:
"(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."
Although the decision of the Apex Court should be followed by all courts and tribunals and all concerned throughout India, it would be evident from the orders made even by the District and Sub-Divisional Courts that neither the provisions of the Code nor the factors laid down by the Apex Court are followed and ex parte orders granted without even stipulating any time for hearing even though it has been provided in the Code of Civil Procedure that application for interim order should be heard within 30 days.
The practice of granting injunction merely on asking has been deprecated by the Apex Court several times and it is really unfortunate that the observations of the Apex Court are not followed by the subordinate courts as well as the High Courts.
It is abundantly clear that the Apex Court from time to time made orders so that interim orders are not made merely on asking but although the decisions mentioned hereinabove are binding on all concerned throughout India, the same are not actually followed by all courts.
Besides, many persons although aggrieved are not in a position to reach the Apex Court and their greivances remain unredressed.
* Senior Advocate Return to Text
(1994) 2 SCC 266 : AIR 1994 SC 1837 Return to Text
(1994) 4 SCC 225 Return to Text