Name of the Student: M Nikhil Sai

Registration Number: 17BBLB026

Programme: BBA LL.B (Hons)

Semester: VIII

Course Name: Code of Civil Procedure

Title: Ex Parte Interim Orders: Ex Parte Relief

Component: Article Review

Date of Submission: 14.06.2021

Submitted to: Dr. Valarmathi R

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 EX PARTE INTERIM ORDERS: EX PARTE RELIEF

By Niharika Sanadhya

Url: https://www.mondaq.com/india/reporting-and-compliance/943086/ex-parte-
interim-orders-ex-parte-relief

Niharika Sanadhya:

Niharika Sanadhya is a Legal Associate working in the litigation team of Khurana &
Khurana. She is a graduate with BBA.LL. B (Hons) from Symbiosis Law School,
Pune. She is skilled in drafting and vetting various agreements related to Intellectual
Property Assignments, tech transfer, strategic alliance etc. She has interned in
Khaitan & Co, SAM firms and also in World Intellectual Property Organization
summer school in Geneva which broadened her knowledge. She has published
multiple articles out of which Virtual Patent Marketing article was selected for the
international conference for presentation.

INTRODUCTION:

This article talks about granting ex parte orders under Order XXXIX of Code of Civil
Procedure and its ill effects caused on the defendant. This goes against the legal
principle ‘audi alteram partem’. The person who is placed ex parte needs to be heard
at the earliest in order to protect the interest of defendant and his right to be heard.

This article discusses various problems faced by the defendant due to ex parte order
passed by the court and the reasons as to what causes it hard to the defendant in
getting the order vacated.

SUMMARY:

The author of this article starts by saying that a person does not need to have legal
knowledge to understand the statement ‘justice delayed is justice denied’. The delay
becomes a greater problem for the parties in litigation when an ex parte injunction
order which goes against the legal principle ‘audi alteram partem’ which says that the
other party should also be heard or should be given an opportunity to be heard.

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This article talks about the barriers faced by the defendant in his attempt to cancel
out the ex parte injunction passed against him, judgements where the court has
addressed the issue of difficulty in cancelling the ex parte interim injunction and how
the applicant or the aggrieved party tries their delaying tactics for gaining upper
hand in the litigation which in turn paralyses the defendant and places the defendant
in an inequitable negotiation. Order XXXIX Rule 3A of Code of Civil Procedure
(CPC) states that once an ex parte injunction is granted by the court without notice
then in such a case, the court must try to dispose of the injunction application
expeditiously and such period is stated in the CPC to be 30 days.

The author has referred to the case Microsoft Corporation v Dhiren Gopal and Ors 1
where the judge has said that when an ex parte injunction is granted by the court
then the decision on the application on merits by the court or getting an ex parte
injuction vacated becomes a very difficult task for the other party. Under Order
XXXIX Rule 1 and 2 of CPC, deciding on applications on merits after listening to the
parties in such cases is very rare. Again, for this, the excuses of the aggrieved party
for seeking adjournments after receiving ex parte injuction delays the litigation even
further.

This has had a bad effect on the Intellectual Property law wherein the plaintiffs seek
for raids to be carried out to seize the alleged subject matter by ex parte order
without providing notice to the other party. Due to this the defendant is exposed to a
lot of losses in the business and is supposed to have long battle in order to get the ex
parte order vacated.

The author discusses about the repercussions of ex parte interim injunction in the
Covid-19 pandemic. Stopping a small business from functioning due to ex parte
interim injunction in the Covid-19 period makes it very difficult for the owner and
the employees to stay afloat. In the case Kent Ro Systems Ltd v Rajat Bansal & Anr.,
wherein the vacation of injunction application has gone unheard for more than a year
due to pandemic. The relief sorted by the plaintiff is almost received by paralyzing
the defendant for a long time. The Defendant is forced to draw money from other
sources in order to stay afloat. Even after the courts start functioning many issues
like not enough time to hear, judge on leave due to illness, etc., makes further delay
in order to get it vacated.
1
2010 (42) PTC 339 (DEL)

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The Supreme Court in the in the case Venkatasubbiah Naidu v S Chellappan and Ors 2
stated that the ex parte injunction needs to be disposed within 30 days, otherwise it
will be recorded in the Annual Confidential Reports of the concerned officer. The
Supreme Court in Ramrameshwari Devi & Ors v Nirmala Devi & Ors 3 advised that
there should be limit for ex parte order for a period of seven days instead of thirty
days so that the plaintiff is refrained from taking adverse benefit from the the ex
parte order keeping the defendant in unfavorable position. It is important to do so
because balance of convenience and irreparable loss needs to be considered keeping
both the parties in mind while giving an effective order.

The ex parte injunction granted by the courts need to be in force for a limited period
of time but it is observed that the subordinate courts are not following the Supreme
Court decision. This is affecting the defendant from vacating the order and from
being heard.

The author states that the ex parte order should be given only in exceptional cases
with an absolute timeline for vacation hearings so as to not cause any kind of
prejudice to the defendant.

REVIEW AND CONCLUSION:

The main reason for taking this article was that the author has not only kept the
plaintiff in mind but also has thought about the ill effects caused to the defendant
when an ex parte injunction is passed. It is a basic nature to think in favor of the
aggrieved party but author has made sure that in the legal profession it is important
to think in favor of the both parties.

The author’s statements about the problems faced by defendant because of ex parte
injunction passed is completely valid. The ex parte injunction passed by the court
without any time limit completely paralyses the defendant from doing anything,
reasonable time for being heard and acceptance of application should made possible
as soon as possible to the defendant in order do justice to both the parties.

The author has mentioned in the case Venkatasubbiah Naidu v S Chellappan and Ors
that if ex parte injunction is not disposed in 30 days then it will be recorded in the
Annual Confidential Reports of the concerned officer, which makes it difficult
2
(2000) 7 SCC 695
3
(2011) 8 SCC 249

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because every court has thousands of cases which it needs to work making it
impossible to make sure that the ex parte injunction is disposed in 30 days’ time.
Every case is different so this should be looked into differently. Effort must be made
to dispose the case as soon as possible and not to threaten them to do so in fixed time
which in turn causes a bad effect on the case.

The author has mentioned two cases Venkatasubbiah Naidu v S Chellappan and Ors
and Ramrameshwari Devi & Ors v Nirmala Devi & Ors wherein both the cases are
decided by the Supreme Court. There is an ambiguity noticed where one judgement
says that the ex parte order must be disposed within 30 days and the other states that
the it should be disposed in 7 days instead of 30 days. This creates a lot of confusion
for the sub ordinate courts as to which decision to be taken to follow.

The effects of Covid-19 pandemic on ex parte injunction has been really harsh on the
defendants as the interim order has almost become a permanent one as it had
continued for a year and more. This creates a lot of financial problem to small
businesses. Many of the people in litigation who are unaware of the technology are
not able to attend video conferences of the court and are not able to procure and
submit the necessary documents due to the pandemic, due to all these reasons there
is a delay in litigation and in vacating the ex parte order.

The author has spoken about the ill effects of exparte injunction faced by the
defendant but has failed to speak about the ill effects faced by the plaintiff in not
giving or giving short period injunction. The plaintiff will not be given the right
justice if injunction is not given or if a 7 days injunction is given. The very purpose of
giving the interim order will be defeated if the main objective of stopping the
defendant from doing something is not given. Reasonable time period should be
given for the interim order to be in force.

The main problems author has stated is the court not ready to listen to the defendant
who has been placed ex parte and plaintiff extending the issue by asking
adjournment. This needs to be stopped, the very objective of judiciary is to make sure
that the issues are solved as soon as possible rather than extending the issue. It is
every person right to be heard and he should be given a chance to be heard in the
earliest. Plaintiff asking adjournment with an intention to cause delay to vacating of

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ex parte order needs to pay the price and made sure that this is not done in order to
protect the interest of defendant.

The courts need to acknowledge the fact that ex pate injunction should be given in
rare cases wherein granting of such order is of outmost importance. Order passed ex
parte affects the other party in a very bad manner hence it should be made sure by
the court that the defendant is made heard at the earliest without any delay. Sub
ordinate courts should make it a point to adhere to the decisions made by the
Supreme Court and follow it effectively.

As rightly pointed out by the author, the court when giving an order has to consider
balance of convenience and irreparable loss of the parties to litigation. It is important
to make sure that the court sees the matter with both defendant and plaintiffs’ point
of view before giving an order.

Giving ex parte order for a longer duration of time by the court is basically like
punishing the party before giving the court’s judgement and decree.