Powers to grant ad-interim and ex-parte orders

“Justice delayed is justice denied” – William E. Gladstone

This legal maxim is principal for the basis for the right to a speedy trial. If equitable relief to an injured party is available, but is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all. Therefore, courts have the inherit power to grant Ad-interim and ex-parte orders to injured party in certain circumstances.

The term Ad-interim means “in the meantime or temporary”. In legal parlance, an ad-interim order is an order, which would operate till the hearing of the matter.

Ex-parte order is a decree, which is passed when there is non-appearance of the opposite party. When one of the parties appears and the other doesn’t, at the time when the case is called out for hearing and the opposite party is dully served with the summons of appearance, then the court may hear the case ex-parte and order the decree against him.

The Supreme Court indicated the following factors which should weigh with a court in the grant of an ex-parte Injunction:

1.Whether irreparable or serious mischief will ensure to the plaintiff.

2.Whether the refusal of an ex-parte injunction would involve greater injustice than grant of it would involve.

3.The court will also consider the time at which the plaintiff first had notice of the act complained of so that the making of an improper order against a party in his absence is prevented.

4.The court will consider whether the plaintiff had acquiesced for some time and in such circumstances, it will not grant an ex parte injunction.

5.General principle like prima facie case, balance of convenience and irreparable loss would also be considered by the court.

Saving Inherent Powers of Court

The Code of Civil Procedure, 1908 under Section 151 says that – ‘Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.’ There are two major principals that court must take into consideration while exercising its inherit powers are: First, the powers are to be exercised only for achieving the ends of Justice and second to prevent an abuse of the process of the court. Hon’ble Supreme Court in the case of, National Institute of Mental Health and Neuro-Science vs. C. Parameshwara, AIR 2005 SC 242 held that Inherent powers cannot be exercised so as to nullify provisions of the code. Where court deals expressly with a particular matter, the provisions should normally be regarded as exhaustive. Therefore, the enforceability and validity of ex-parte decree is similar to bi-parte decree.

Scope of the Powers under Section 151 of CPC

In the very recent verdict of K.K. Velusamy v. N. Palaanisamy the Hon’ble Supreme Court summarized the scope of Section 151 of the CPC as follows:

(a) Section 151 is not a substantive provision which confers any power or jurisdiction on courts. It merely recognizes the discretionary power of every court for rendering justice in accordance with law, to do what is `right‟ and undo what is `wrong‟, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) The provisions of the Code are not exhaustive; section 151 says that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used by the court to deal with such situation, to achieve the ends of justice, depending upon the facts and circumstances of the case.

(c) A Court has no power to do things which is prohibited by law or the Code, in the exercise of its inherent powers. The court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is expressly provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them and the court should exercise it in a way that it should not be in conflict with what has been expressly provided in the Code.

(e) While exercising the inherent power, there is no such legislative guidance to deal with those special situations of the case and so the exercise of power depends upon the discretion and wisdom of the court, and also upon the facts and circumstances of the case. So, such consequential situation should not however be treated as a carte blanche to grant any relief.

(f) The power under section 151 will have to be used with care, only where it is absolutely necessary, when there is no provision in the Code governing the matter or when the bona fides of the applicant cannot be doubted or when such exercise is to meet the ends of justice and to prevent abuse of process of court.

Considering, the observations made by the Supreme Court in above case, the courts have inherent power to grant ad-interim and ex-parte orders to injured party in special circumstances however there are certain limitations.

Limitations to the Powers of Court

Every provisions of law is made in very balanced manner to prevent its abuse. Similarly, The court can exercise its inherent powers only in special circumstances where no alternative remedy is available. The inherent powers saved by section 151 of the Code are not over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders. In Abdul Rahim Attar vs. Atul Ambalal Batrot, AIR 2005 Bom 120, it was held that Resource to inherent powers in face of or in conflict with specific provisions of statute is not permissible. Inherent power cannot be exercised to nullify effect of any statutory provisions. Further, inherent powers of court can not be used to re-open the settled matters. Thirty days is the limitation period for filing an application for setting aside an ex-parte decree and where it is unable to do so, a reason must be given for inability.

It is observed that ex- parte injunction and interim orders should be made for exceptional cases only with an absolute timeline for vacation hearings so as to not cause the Defendants any kind of prejudice. Time is the essence of ex-parte order in such scenario knowledge of the day of hearing as well reasonable time to appear before the court is important. These orders have not just a binding force but it must be followed throughout the India for justice.

References:

http://www.acadpubl.eu/hub/

The Code of Civil Procedure, 1908

https://www.legalserviceindia.com/legal/article-2444-temporary-injunction-o-39.html

Aishwarya Says:

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