Union of India vs. Era Educational Trust and Another (05.04.

2000 - SC)

May be that Order XXXIX, of the C.P.C. would not be applicable at the stage of
granting interim relief in a petition under Article 226 or 227 of the Constitution,
but at the same time various principles laid down under Order XXXIX for
granting ad interim or interim reliefs are required to be taken into consideration.
In the case of Morgan Stanley Mutual Fund v. Kartick Das (1994)4SCC225 , after
considering the various authorities this Court laid down the guiding principles in
relation to grant of an ad interim injunction which are as under:

As a principle, ex parte injunction could be granted only under exceptional

circumstances. The factors which should weigh with the Court in the grant of ex
parte injunction are-

(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 sometime
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.

Smt. Renu Sharma and Anr. vs. Titan Industries Ltd. and Anr. (16.03.2007 -
DELHC) :

Ratio Decidendi:
"Principles of natural justice require that proceedings shall not be conducted in
absence of parties unless there were compelling circumstances."
20. However, any judicial decision, where adequate opportunity is not given to a
party to present his version of the case, can result in injustice. The Courts have to
strike a delicate and difficult balance between both the parties. It is difficult to
prove and establish the facts, allegations and counter allegations without going
deeper into the matter and giving opportunity to the parties to examine
witnesses and cross-examine them. Sometimes it can become difficult for the
Court to decide the question of "sufficient cause" as required under the
provisions of Order IX, Rules 7 and 13 of the Code without recording evidence,
thus delaying the matter and prolonging the litigation. Weighing and balancing
equities on both the sides and with a view to expedite the progress of the case
and not to stall the same by asking the parties to lead evidence, we feel it would
be appropriate to allow the present appeal and set aside the ex-parte order
subject to payment of costs of Rs. 50,000/ - to the respondent. In taking this view
we are also keeping in mind the principle of law that no person should be
condemned unheard and just and fair opportunity should be granted. Normally,
principles of natural justice require that proceedings should not be conducted in
the absence of parties, unless there are compelling circumstances, costs can be
imposed to award adequate compensation. Supreme Court in the case of Rani
Kusum v. Kanchan Devi and Ors. reported in MANU/SC/0489/2005 : (2005) 6
SCC 705. while examining the provisions of Order VIII, Rule 1 of the Code has
observed that processural law has the object of advancing cause of justice. In
adversarial system, a party should be given adequate opportunity to participate
in the proceedings and processural law should not be construed in a manner so
as to leave the party helpless. Processural law has to do substantial justice and is
always subservient to and is an aid of justice. It should not be construed in a
manner to obstruct a party from pleading it's case and representing himself.
Keeping these principles in mind we feel that substantial justice will be done in
case we allow the appellant to appear in the matter subject to payment of costs
as aforesaid. This we feel will do substantial justice. We may mention here that
the appellant is already appearing in the suit and the case has been fixed now for
cross-examination of the witnesses of the appellant who have filed affidavit by
way of evidence. We also find that after the appellant was proceeded against ex-
parte, the respondent had taken a long time to file affidavit by way of evidence of
his witnesses. The matter was repeatedly adjourned at the request of the
respondent herein.
MANDATORY INJUNCTION
Dorab Cawasji Warden v. Coomi Sorab Warden and Ors.
MANU/SC/0161/1990 : [1990]1SCR332 ,
This Court, discussing the principles to he kept in mind in considering the prayer
for interlocutory mandatory injunction observed :

"The relief of interlocutory mandatory injunctions are thus granted generally to

preserve or restore the status quo of the last non-contested status which
preceded the pending controversy until the final hearing when full relief may be
granted or to compel the undoing of those acts that have been illegally done or
the restoration of that which was wrongfully taken from the party complaining.
But since the granting of such an injunction to a party who fails or would fail to
establish his right at the trial may cause great injustice or irreparable harm to
the party against whom it was granted or alternatively not granting of it to a
party who succeeds or would succeed may equally cause great injustice or
irreparable harm, courts have evolved certain guidelines. Generally stated these
guidelines are :
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard
than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally

cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

Being essentially an equitable relief the grant or refusal of an interlocutory

mandatory injunction shall ultimately rest in the sound judicial discretion of the
court to be exercised in the light of the facts and circumstances' in each case.
Though the above guidelines are neither exhaustive nor complete or absolute
rules, and there may be exceptional circumstances needing action, applying them
as a prerequisite for the grant or refusal of such injunctions would be a sound
exercise of a judicial discretion."