POWER TO GRANT INTERIM AND EX PARTE ORDERS: A COMPARATIVE ANALYSIS

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This article is written by Anuja Bansal of Mangalayatan University, Jabalpur, an intern under Legal Vidhiya

ABSTRACT

In today’s scenario, the power to grant interim and ex parte orders is a critical component of the legal system especially in situations where any pendency and emergency require immediate intervention. This power to grant such orders is basically a legal right vested in courts to issue temporary orders or judgements in specific circumstances without hearing the other party involved in the case. These orders are issued to eventually preserve the status quo, prevent irreparable harm, or safeguard the validity of the court’s judgement. In such cases, The power to grant interim and ex party orders provides the quotes with the authority to act quickly in certain situations to preserve the rights and interests of the involved parties. It is also important to balance this power with the notions of justice, due process, and the temporary nature of such orders.

Keywords: Interim orders, Ex parte orders, Legal Right, Temporary orders, Status quo, Intervention, Specific circumstances.

INTRODUCTION

The ability to issue interim and ex parte orders is a key component of the legal system, particularly in situations where urgency and immediate intervention are required. It is a legal right granted to courts that allows them to issue temporary orders or judgements in certain circumstances without hearing the other side. This power to grant interim and ex parte orders gives the court the authority to act in certain situations quickly and effectively. In today’s changing and fast-paced world, legal systems must adapt to the evolving needs and complexities of society. The power to grant interim and ex parte orders emerges as a crucial mechanism to address urgent matters that cannot wait for the normal course of proceedings. These orders allow courts to take immediate action, ensuring that justice is served efficiently and effectively. While ex parte orders are granted without the presence or input of the other party, they are followed by a subsequent hearing where the opposing party can present their arguments and evidence. This ensures that the interests of all parties are considered and that a fair and just decision is reached. For instance, in cases involving domestic violence, a court may issue an ex parte restraining order to provide immediate protection to the victim. The subsequent hearing allows the accused party an opportunity to present their side of the case and challenge the order if necessary. However, it is crucial to strike a balance between the exercise of this power and the principles of justice, due process, and the temporary nature of such orders. By upholding these principles, the legal system can ensure fairness, protect fundamental rights, and maintain the integrity of the judicial process.

OBJECTIVES

The objective of this article is to provide a comprehensive understanding of the power to grant interim and ex parte orders in the legal system. It aims to explain the purpose and significance of these orders, their application in various scenarios, the safeguards and limitations involved, and their relevance in today’s legal arena. By exploring this topic, readers will gain insights into the legal authority vested in courts to issue temporary orders, the circumstances in which such orders are granted, and the balance required between expediency and due process.

INTERIM ORDERS

Interim orders are an essential part of legal proceedings which plays a crucial role in ensuring justice and maintaining stability during the course of a case. ‘According to the dictionary meaning of interim means for the time being, meanwhile, temporary, provisional, not final, intervening.’[1] These orders serve as temporary measures issued by courts to address urgent matters, preserve rights, and provide relief until a final judgment is reached. By providing temporary relief, interim orders allow individuals to secure their rights and prevent any further damage or loss while awaiting the final resolution of a case. They also contribute to the efficiency of the judicial system by preventing delays. The significance of interim orders lies in their ability to strike a balance between immediate relief and the need for a fair and comprehensive resolution of legal disputes.

Interim orders are governed by specific procedural rules that vary across jurisdictions but generally share common principles. Parties seeking interim relief must typically demonstrate the urgency and necessity of the order and provide sufficient evidence supporting their case. Courts consider factors such as the balance of convenience, the likelihood of success in the main case, and the potential harm that may result from the lack of interim relief. The procedural framework also entails notice requirements, the opportunity for opposing parties to present their arguments, and the provision for expedited hearings. Familiarity with the procedural aspects is vital for parties involved in legal proceedings, as it ensures compliance with the requirements and enhances their chances of obtaining interim relief effectively.

The concept of interim or interlocutory order derives its roots and origins from the provisions of Order 39 Rules 1 to 3 CPC, which are the source of the power to provide interim relief and temporary injunctions.

Order 39 Rule 1 CPC, says that –

‘Wherein any suit, it is proved by affidavit or otherwise

(a) that 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) that the defendant threatens, or intends, to remove or dispose of the property with a view to defrauding the creditors;

(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit; the court may grant an order of temporary injunction to restrain such acts….’[2]

SIGNIFICANCE OF INTERIM ORDERS

Civil courts may pass interim orders in the matters before them. These kinds of orders are passed either under the Specific Relief Act, 1963, or in accordance to section 151 of the Civil Procedure Code of 1908, which recognizes and preserves some inherent powers with the civil courts. According to the 1963 act, a court may only issue an interim order if the following conditions are satisfied-

Where there is a prima facie case in the party’s favour seeking the order
When failure to issue the order may result in an irreparable damage to the party and such damage may not be Ascertained in terms or money and may not be compensable.
The balance of convenience favours the party who is requesting the order[3]

Interim orders serve as a crucial mechanism to protect the rights and interests of the parties involved in a case. By granting temporary relief, these orders prevent any further damage or loss to the parties’ rights until a final determination is reached. They help maintain the status quo during the course of legal proceedings. They ensure that parties do not take actions that could cause irreversible damage or disrupt the balance of interests before the case reaches a final resolution. Interim orders are particularly significant in urgent situations where immediate action is required to address a pressing issue. They allow for timely relief and prevent undue delays, ensuring that justice is not hampered by the slow pace of legal proceedings. By providing temporary relief, interim orders help streamline legal proceedings and promote efficiency within the judicial system. They prevent cases from becoming unmanageable due to the absence of interim measures, allowing for a smoother and more effective administration of justice.

CLASSIFICATION OF INTERIM ORDERS

Based upon the nature of the direction which is issued by the court an interim order is classified into two categories The direction which is issued by the code and interim order is classified in two categories:

Directive order: Until the trial is over or a further order is issued, the courts issue a directive order in response to instruct either party to conduct in a specific way The courts may grant a clear interim order, if discontinuing the proceeding would harm the other party.

Restraining order: This kind of order is issued by the courts in order to stop any of the parties from acting in a particular way while the civil lawsuit is pending. The actual motive of restraining orders is to protect the parties from any sort of harm that might have resulted from the other party continuing to act on the subject of the lawsuit. [4]

INTERIM ORDER UNDER CPC

Interim orders under CPC are as follows:[5]

Payment in Court: Order 24

In a lawsuit for debt or damages, the defendant is free to deposit any amount of money that he sees fit as a complete payment of the plaintiff’s claim at any point in the proceeding. The court will record the plaintiff’s statement and issue its judgement in accordance with the decision of the plaintiff regarding the acceptance of the money once it fully satisfies the requirements. On the other side, the plaintiff has the option to sue the defendant to recover the unpaid balance, if the plaintiff accepts the payment as a satisfactory amount in part of his claim. However, the plaintiff is responsible for covering all costs incurred after the deposit, if it is finally determined that the deposit fully meets the plaintiff’s requirements.

Security of Costs: Order 25

Order XXV Rule 1 States that the court may issue an order that requires security from the plaintiff at any time during the legal proceeding to cover the costs incurred by the defendant. The defendant may request that the court use this power or can take a suo moto cognizance. However, in the following situations, the court may issue this directive:

The plaintiff resides outside of India, or there are two or more plaintiffs, and they all reside outside India
Only the plaintiff or no plaintiff owns sufficient real estate in India, other than that which is the subject of the litigation.

The rule is intended to safeguard defendants in specific situations where, if the defendant’s side of the case were to prevail, it could be challenging for them to recover their expenses from the plaintiff.

Commissions: Order 26

The power of the code to issue a commission is covered by sections 75 to 78 of the CPC and it is further explained in Order 26 of the code. The court may exercise this power on its discretion to issue commissions. Complete justice is established between the parties by the court. The parties to the dispute may ask the court to exercise this right or the court may do so by a suo moto action. “A commission may be issued by a court under section 75 for any of the following reasons:

to examine witnesses (Sections 76-78; Order 26 Rules 1-83),
to make local investigation (Rules 9 and 10);
to adjust accounts (Rules 11 and 12);
to make a partition (Rules 13 and 14);
to hold investigation (Rule 10-A);
to perform a ministerial act (Rule 10-B); or
to conduct sale (Rule 10-C)” [6]
Arrest before the judgement: Order 38

In most cases an accused person was arrested after the decree had been passed, but in some rare circumstances, this was not always the case. The order’s main purpose is to safeguard the plaintiff’s interests by preventing the defendant from trying to evade or avoid any obligations placed on him by the court. The arrest of the defendant prior to rendering a judgement in the plaintiff’s favour is an extreme step, thus it should be carried out with the necessary care and prudence. Before making such a ruling, the court should be sure that the defendant and his property will be lost if the order is not made, as the defendant has the right to remove them from the court’s jurisdiction. Therefore, before issuing any orders requiring the defendant to be arrested prior to judgement, the court should always refer to Rule 1. Rule 1 laid down:

‘When an affidavit or another method is utilised to convince the court, at any point of the dispute, that,

The defendant has purposefully delayed the plaintiff or avoided any court procedure, or hindered or delayed the execution of any decree that the litigation may take against him.
the defendant has absconded, or has left the local limits of the court’s jurisdiction, or
is about to abscond, has left the local restrictions of the court’s jurisdiction, or
has sold or removed its property or any part of its property from the local restrictions of the court’s jurisdiction,
When there is a reasonable chance that the defendant may leave India, harm the plaintiff’s interests, and prevent or delay the implementation of any judgement rendered against the defendant by the court. The defendant may be the subject of an arrest warrant issued by the court, who may then summon the defendant into court to explain why he should not be required to give a guarantee of his appearance. The defendant will not be arrested, though, if he gives the officer executing the warrant the money mentioned in the bail, which is enough to cover the plaintiff’s claim.
Attachment before judgement: Order 38, Rule 5-13

Similar to an arrest before judgement, the court may order an attachment before judgement in certain circumstances. The principal goal of attachment before the judgement is to prevent the defendant from making any attempts to thwart the decree’s enforcement. If the court determines at any point throughout the lawsuit that the defendant is attempting to thwart or delay the enforcement of a possible order against him, whether through an affidavit or another method,

“Is about to remove or dispose of the whole or any part of his property. Or
Remove all or any part of its property from the local restrictions of the court’s jurisdiction[7]; the court may instruct the defendant within a time determined by the court to provide a bond of the amount specified in the order and sufficient to satisfy the decree and ask the defendant to appear and show the reason why it should not provide a guarantee.”[8]

The plaintiff should identify the property that will be attached and its approximate worth, unless the court orders otherwise. The court may also impose a direct and conditional attachment on all or any portion of the property. The attachment will be void if an attachment order is issued that does not adhere to Rule 5(1).

Any agricultural products owned by farmers cannot be ordered to be attached or produced by the court.[9]

Temporary Injunctions: Order 39

An injunction is a remedy given to a person in the form of a court order that forbids him from starting to do something, orders him to keep doing something, or both. The basic goal of providing interim relief is to keep the contested property until the court evaluates the parties’ conflicting legal claims and requirements.

Interlocutory Orders: Order 39

The court may, under certain circumstances, order the sale and purchase of perishable items under Rule 6 of Order 39. Rule 7 gives courts the authority to provide permission for anyone to enter any property owned by any party for the purposes of sample, observation, or experimentation in order to hold, preserve, or inspect the property that is the subject of the lawsuit. Unless it appears that the objective of making such an order will be defeated due to delay, Rule 8 requires courts to notify the other party prior to making such an order. Any other party in the litigation claiming an interest in the land may instantly pay for the property and obtain control of it after paying for the property if the land at issue in the lawsuit is required to pay the government revenue but the party owning the land fails to pay the revenue. The sum paid and interest thereon may be ordered by the court to be paid against the defaulter in the decree. The court may require one party to deposit money in the court if that person admits that he is acting as a trustee for another party.

Receiver: Order 40

A receiver is a neutral party that the court appoints to mediate between the litigants. When the judge determines that it is unreasonable for either party to hold property or finances, he may accept them as part of the case. The primary goal of appointing a receiver is to maintain, administer, and protect the assets of the case while it is pending in court while protecting the interests of both parties involved.

LIMITATIONS OF INTERIM ORDERS

While interim orders play a vital role in legal proceedings, it is important to recognize their limitations as well.

Interim orders are inherently temporary measures that provide relief until a final judgment is reached. They do not provide a definitive resolution to the underlying legal dispute, and their effect is limited to the duration of the interim period.
Interim orders typically address urgent matters and aim to maintain the status quo rather than resolving the entire dispute. They may only address specific issues or provide limited relief, which may not fully resolve the underlying dispute or provide a comprehensive solution to all the parties’ concerns.
Interim orders are subject to variation or modification based on changing circumstances or new evidence that may emerge during the course of the proceedings. This means that the relief provided by an interim order can be altered or even revoked, depending on the evolving nature of the case. Consequently, parties cannot solely rely on interim orders as a final resolution.

EX PARTE ORDERS

Ex-parte order or decree indicates that the court has made its decision even though one of the parties to the lawsuit is not present, and theoretically, the case has only been determined on the claims of the one person who is physically present. Typically, it takes place in the defendants’ absence who did not show up for the hearing. Ex parte orders are a significant aspect of legal proceedings that involve obtaining relief from a court without the presence or input of the opposing party. These orders are granted based on the request and evidence presented by one party, without the opportunity for the opposing party to be heard. Ex parte orders have the potential to affect the rights and interests of the parties involved and can significantly impact the course and outcome of legal disputes. Whenever court passes a decree in favour of the plaintiff in the ex parte proceedings, that particular decree is called an ex parte decree. The court will be satisfied by the cogent material available on record that the summons to the defendant has been duly served and the defendant has sufficient time to appear before the court and answer the suit. However, the defendant has absented himself from court on the date of hearing stated in the summons served to him in accordance with the Code. According to Order 9, Rule 6(1)(a) of the Code of Civil Procedure of 1908, the court may order that the case be heard ex parte.[10] In the context of civil procedure, ex parte motions can be granted without requiring a response from the other party. In most situations, these are orders that are only put into effect temporarily until further hearings can be held; an example of this would be a temporary restraining order.

SIGNIFICANCE OF EX-PARTE ORDERS

Ex parte orders hold significant importance within the realm of legal proceedings. Ex parte orders play a critical role in protecting vulnerable parties who may be at risk or facing imminent harm. In situations involving domestic violence, child custody disputes, or instances where one party poses a threat to the safety of another, ex parte orders can provide swift protection and ensure the well-being of those involved. Ex parte orders can be instrumental in preserving evidence or assets that are at risk of destruction, concealment, or dissipation. By granting immediate relief, such as freezing bank accounts or securing documents, courts can prevent the loss or destruction of crucial evidence or assets relevant to the case. In certain instances, ex parte orders may be necessary to maintain confidentiality, particularly in matters involving trade secrets, intellectual property, or sensitive personal information. By limiting the involvement of the opposing party, the risk of unauthorized disclosure or misuse of confidential information can be minimized. An ex parte order has all the force of a court order behind it when it is issued. This enables the recipient to take action right away. For instance, the seeking party may typically get custody of the adult and take him or her to the doctor for treatment if the ex parte order is for guardianship of an adult. An ex parte order also avoids the frequently drawn-out procedure of anticipating a court order.[11]

EX-PARTE ORDERS: PROVISIONS

According to Order 9, Rule 6(1)(a), the court may proceed ex-parte and issue an ex-parte decree if it determines that the defendant failed to appear in court on the hearing date specified in the summons properly served on him.

Order 9, rule 6(1)(a) states that:

When the case is called for hearing, the plaintiff appears but the defendant does not. The Rule further divides this circumstance into three separate scenarios:

When summons duly served: The court may rule that the suit shall be heard ex parte if it can be proved that the summons was duly served.
When summons not duly served: The court will order a second summons to be issued and served on the defendant if it cannot be demonstrated that the first summons was properly served.
When summons served but not in due time: If it can be demonstrated that the defendant did not receive the summons in time for him to attend and respond on the day specified in the summons.
Consequences of Non-Appearance of Parties (Order 9)

The general provisions of the CPC are founded on the idea that both sides must have a chance to be heard. One side cannot be disadvantaged by the process. Rules are outlined in Order 9 addressing a party’s appearance at the hearing and the repercussions of their absence.

Appearance and Non-Appearance

“Rule 1 – Parties to appear on day fixed in summons for defendant to appear and answer.”[12]

The parties must appear in person or through a representative at the court on the date specified in the summons for the defendant to appear and respond, and the case will then be heard unless the court adjourns it to a future date.

Ex Parte Proceedings

“Rule 6 – Procedure when only plaintiff appears

1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

(a) When summons duly served if it is proved that the summons was duly served, the Court

(b) When summons not duly servedif it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

2) Where it is owing to the plaintiffs’ default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.”[13]

Domestic Violence Act, 2005, includes the Power to grant interim and ex parte orders within section 23:

“(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”[14]

REMEDIES AGAINST EX PARTE DECREE

A party aggrieved by an ex parte decree (a decree passed in the absence of the defendant/respondent) has several remedies available to challenge and seek relief against such a decree as follows:

The party against whom the decree has been passed can file an application to set aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure, 1908.
A revision petition can be filed before the High Court under Section 115 of the Code of Civil Procedure, 1908, seeking the revision of the ex parte decree. The High Court may exercise its powers of revision to correct any errors, irregularities, or jurisdictional issues committed by the lower court while passing the ex parte decree.
If there are errors or mistakes apparent on the face of the decree, the aggrieved party can file an application for review under Order 47, Rule 1 of the Code of Civil Procedure, 1908.

LIMITATIONS OF EX PARTE ORDER

Ex parte orders, despite their significance in certain circumstances, have limitations that should be considered. Ex parte orders are issued without the presence or input of the opposing party. This absence of an adversarial process can limit the court’s ability to consider all perspectives and potentially result in a one-sided decision that may be challenged later by the opposing party. These orders are typically based on the evidence presented by the requesting party alone. The court’s evaluation of this evidence may be limited, as there is no opposing party to challenge or present contradictory evidence. This limited examination may impact the accuracy and completeness of the decision. Challenging an ex parte order can be a complex and time-sensitive process. The aggrieved party may need to navigate specific procedural requirements, such as filing applications to set aside the order or seeking an appeal. These processes may have strict timelines, and any delay or failure to comply with the requirements may hinder the ability to challenge the order effectively.

CONCLUSION

power to grant interim orders and ex parte orders is a critical aspect of the legal system, providing a means to address urgent matters, maintain stability, and protect the rights and interests of the parties involved. Interim orders serve as temporary measures that offer relief until a final resolution is reached, ensuring fairness, efficiency, and practicality within legal proceedings. They play a significant role in preserving the status quo, preventing irreparable harm, and balancing the interests of the parties. On the other hand, ex parte orders allow for expedited relief when immediate action is necessary, prioritizing the protection of vulnerable parties and urgent circumstances. Balancing the need for swift relief with the rights of all parties involved is crucial. Courts must exercise their power judiciously, ensuring that the granting of interim and ex parte orders is based on valid grounds, credible evidence, and compliance with procedural requirements. By striking this balance, the power to grant interim and ex parte orders can effectively serve its purpose in promoting justice, protecting rights, and facilitating the efficient resolution of legal disputes.

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