What is Temporary injunction? When and how a temporary injunction is granted? What is the principles of a temporary injunction?

An injunction is a court order requiring a person to do or cease doing a specific action. Temporary restraining orders and preliminary injunctions are temporary injunctions.

What is Temporary injunction?

Definition: According to order 39 of the CPC any order made temporarily prohibiting the defendant not to alienate, or to change or to damage the property in dispute during the pendency of the suit is called temporary injunction.

Thus temporary injunction is regulated under the provisions of rules 1-5, order 39 of the Code of Civil Procedure, 1908.

When and how a temporary injunction is granted

According to Order 39 Rules 1& 2 of the CPC –
Temporary injunction may be granted by the Court in the following cases—
a) where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or;
b) where the defendants threatens, or intends to remove or dispose of his property with a view to defrauding his creditors; or
c) where the defendants threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit; or
d) where the defendant is about to commit a breach of contract, or other injury of any kind; or
e) Where the court is of the opinion that the interest of justice so requires.

Order XXXIX Rule 2(3

In the case of disobedience of any injunction granted or other Order made under rule 1 or 2 or breach of any of the terms on which the injunction was granted or the Order made, the court granting the injunction or making the order, or any court to which the Suit or proceeding is transferred, may Order the property of the person guilty of such disobedience or breach to be attached, and may also Order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release.

No attachment made under this rule shall remain in force for more than tone year at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.

Principle
(a) prima facie case
(b) irreparable loss
(c) balance of convenience; and

Prima facie case: At first the court must consider whether the plaintiff makes out of a prima facie case in support of his claim.

The existence of a prima facie case in favour of the plaintiff is necessary before a temporary injunction can be granted to him. ‘Good prima facie case’ has been explained to mean that a serious question is to be tried in the suit and in the event of success, if the injunction be not granted the plaintiff would suffer irreparable injury.
Case: Uttara Bank vs. Macneill & Kilburn Ltd. 33 DLR.

Irreparable injury: “Irreparable injury” means that the injury must be one that cannot be adequately compensated for in damages. The mere fact that if no injunctions was granted the party would be open to criminal prosecution does not mean that irreparable injury would be non issue of an injunction.

Balance of inconvenience: The court should issue an injunction where the balance of convenience is in favour of the plaintiff and not where the balance is in favour of the opposite party. The meaning of “balance of convenience” in favour of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiffs.

Case: MT. AymumNessa vs. md. Obaidul haque, 35 DLR

What is Ex-parte decree? What is the remedy of ex-parte decree under code of civil procedure?

Ex parte is a hails from Latin language which means 'By or for one party' or 'by one side”. According to principle of natural justice a case must be decided in presence of both the party and both the parties must be given proper opportunity to present them. However in some circumstances a court can award an ex parte decree. An ex parte decree is a decree passed in the absence of the defendant (in absenti). Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the court may hear the suit ex parte and pass a decree against him. Such a decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a bi parte decree and it has all the force of a valid decree. 

Remedy of ex-parte decree

According to Section 96(2) of Code of Civil Procedure 1908

An appeal may lie from an original decree passed ex parte.

According to Order XLVII Rule 7(2) of Code of Civil Procedure 1908 

Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.

According to Order IX Rule 13 of Code of Civil Procedure 1908 

In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an Order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an Order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be sent aside as against all or any of the other defendant also:

Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

According to Order IX Rule 13A of Code of Civil Procedure 1908 

Notwithstanding anything contained in rule 13 or any other law, the Court may, in order to avoid delay and expedite disposal, directly set aside the decree without requiring the defendant to adduce evidence to satisfy it about sufficient
causes as required under rule 13, but requiring him to pay such cost not exceeding three thousand taka as it may deem appropriate and determine;


Provided that the decree under this rule shall not be set aside unless an application, supported by affidavit, praying for setting aside the decree is made to the Court within thirty days of the date on which the decree is passed by the defendant who
appeared and filed written statement:

Provided further that no decree shall be set aside more than once under this rule at the instance of the same defendant.

(2) As soon as an order under sub-rule (1) is made setting side an ex parte decree, the Court shall cause notice thereof to be served at the cost of the defendant upon the plaintiff

When a plaint can be dismissed? What is the remedy of dismissal of a plaint?

Dismissed of a Plaint

According to Order IX Rule 1 of Code of Civil Procedure 1908 

On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the court house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the court.

According to Order IX Rule 2 of Code of Civil Procedure 1908

Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by Rule 9 of Order VII, the Court may make an order that the suit be dismissed:
Provided that no such order shall be made, if notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer.

Remedy of dismissal of a plaint

According to Order IX Rule 4 of Code of Civil Procedure 1908 

Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an Order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for such failure as is referred to in rule 2, or for his non appearance, as the case may be, the court shall make an Order setting aside the dismissal and shall appoint a day for proceeding with the suit.

When a plaint can be reject? What is the remedy of rejection?

Rejection of plaint

According to Order VII Rule 11 of Code of Civil Procedure 1908

The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provision of Rule 9.

Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.

Remedy of rejection of Plaint

According to Order VII Rule 13 of Code of Civil Procedure 1908

The rejection of the plaint on any of the grounds herein before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

Particulars to be contained in plaint

What is Plaint?

The expression ‘plaint’ has not been defined in the code. However, it can be said to be a statement of claim, a document, by presentation of which the suit is instituted. Its object is to state the grounds upon which the assistance of the court is sought by the plaintiff. It is a pleading of the plaintiff.

Particulars to be contained in plaint

According to ORDER VII Ru1e 1 of Code of Civil Procedure 1908,

The plaint shall contain the following particulars:—
(a) the name of the court in which the Suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that affect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set off or relinquished a portion of his claim the amount so allowed or relinquished; and
(i) a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits.