Temporary Injunction (Stay Order) under Order XXXIX Rules 1 & 2 CPC
When courts grant a stay order in civil suits, the three ingredients — prima facie case, balance of convenience and irreparable loss — and how to draft the application.
A temporary injunction — commonly called a stay order — preserves the subject matter of a civil suit until the suit is decided. It is governed by Order XXXIX Rules 1 and 2 and Section 94 of the Code of Civil Procedure, 1908.
When can it be granted?
Under Rule 1, the court may grant a temporary injunction where the property in dispute is in danger of being wasted, damaged or alienated, or where the defendant threatens to dispose of property to defraud creditors or to dispossess the plaintiff. Rule 2 covers injunctions to restrain breach of contract or other injury.
The three ingredients
- Prima facie case — a serious question to be tried, not proof of the whole case.
- Balance of convenience — greater inconvenience would be caused to the applicant by refusing the injunction than to the other side by granting it.
- Irreparable loss — injury that cannot adequately be compensated in money.
All three must usually co-exist. Conduct of the applicant, delay and concealment of facts are also relevant, since injunction is an equitable relief.
Ex parte ad-interim injunction
Where delay would defeat the object, the court may grant an ad-interim injunction without notice, but Rule 3 requires it to record reasons, and the applicant must comply with notice requirements promptly.
Drafting checklist
- File the application with the plaint, supported by an affidavit.
- Describe the property or right precisely (khasra numbers, boundaries, plot number).
- Plead each of the three ingredients separately with facts.
- Annex documents showing title or possession.
Vacating or varying the order
Under Rule 4, the court may discharge, vary or set aside an injunction on application by the aggrieved party. Orders on injunction applications are appealable under Order XLIII CPC.
Sources & references
- Code of Civil Procedure, 1908 — Section 94, Order XXXIX Rules 1, 2, 2-A, 3, 4
- Specific Relief Act, 1877 — Sections 52–57
Frequently asked questions
What are the three ingredients for a stay order?
A prima facie case, the balance of convenience in the applicant’s favour, and irreparable loss or injury if the injunction is refused.
What happens if a party disobeys a stay order?
Under Order XXXIX Rule 2-A CPC, the court may order attachment of property and detention in civil prison of the person guilty of disobedience.