What Principles should be considered while granting ex-parte temporary injunctions?
Morgan Stanley (supra) spelt out the guiding
principles in relation to the grant of an ad-interim injunction in such
areas of the functioning of the capital market and public issues of
the corporate sectors and whether certain 'venu restriction clauses'
would require to be evolved judiciously. The guiding principles were
that the ex-parte injunction could be granted only under the
exceptional circumstances. The factors which should weigh with
the Court in the grant of ex-parte injunction were-
(a) where irreparable or serious mischief will ensure 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 would 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.
15. In Sopan Thopte (supra) a Division Bench of this
Court noticed that in many cases subordinate Courts are granting
ad-interim reliefs without following the mandate of Rule 3 of Order
XXXIX of the C.P.C. Only under exceptional circumstances ex-parte
stay order or interim relief is required to be granted by recording
reasons. But recording of reasons should not be an empty
formality, such as by mentioning that the record has been seen and
the plaintiff establishes prima facie case. The Courts should bear in
mind the foregoing principles enunciated in the case of Morgan14
Stanley Mutual Fund(supra). Their Lordships also observed that
in their view passing an interim order indiscriminately and without
apparent and due application of mind, which has the effect of
allowing the plaintiff to continue to enjoy the fruits of his illegal
actions including unauthorised construction tends to lower the
Court's prestige and clearly undermines the Rule of Law while once
again emphasizing the need to see that the prima facie case is
made out before the Court grants an ad-interim injunction.
IN THE HIGH COURT OF BOMBAY AT GOA.
APPEAL FROM ORDER NO. 44 OF 2016.
SHRI NARCINVA DAMODAR NAIK,
Versus
SMT. RUKMA ABHIJIT SADEKAR,
PRONOUNCED ON : 18th July,2016.
