What is Temporary Injunction or Stay Order?
It is provided in rule 1 of order XXXIX, of the Code of Civil procedure, 1908 that where the suit property is in danger of being damaged, wasted or alienated by any party to the suit or even being sold wrongfully during execution proceedings or where there is intention of removal or disposal of property by defendant to defraud his creditors, the court may on application of plaintiff, grant temporary injunction to restrain such acts until the disposal of suit or until further orders.
Temporary injunction may be of two types. One is “Ad-interim Injunction” i.e. the injunction which is passed in the absence of defendants. Ad-interim injunction shall not ordinarily exceed fifteen days. However, it may be extended where it couldn’t be served to defendant not by fault of plaintiff or where defendant himself obtains time for defense of application of temporary injunction. Second type of temporary injunction is the injunction which is granted after hearing both parties or after serving notice to the defendants. This injunction shall cease on expiration of a period of one year, or on disposal of suit whichever is earlier unless the same is discharged or set aside by the court earlier. Although there are certain difference in both these injunctions, however, one thing is common that both of these are granted and exists during pendency of suit only.
Grounds for Temporary Injunction
It is settled principle of law that a temporary injunction is to be granted by the court after taking into consideration the following three essential grounds:
1. Whether a prima-facie case exists in favor of the plaintiff?
2. Whether the balance of convenience also lies in favor of plaintiff?
3. Whether the plaintiff would suffer irreparable loss if the injunction would not be granted?
Atif Ahmad V. Securities and exchange commission Pakistan
2023 CLD 313
Marghub Siddiqi v. Hamid Ahmad Khan and 2 others
1974 SCMR 519
Puri Terminal LTD v. GOVT. OF PAKISTAN
2004 SCMR 1092
Additional Grounds for Injunction
The enactment and the precedents are in line on the point that the one who seeks equity must do equity. The temporary injunction is a discretionary relief and while considering the question of grant of this relief, the courts have to take into account the co-existence of prima facie case, balance of convenience and irreparable loss and injury in favor of a party seeking such relief. While weighing a case’s merits based on these criteria, the courts may take into account a party’s overall conduct
i.e.
(a) Whether the plaintiff has approached the Court with considerable delay. And he has not acted vigilantly and promptly?
(b) Whether the plaintiff has not approached the Court with clean hands?
(c) Whether grant of injunction to the plaintiff will be against public interest/public policy?
(d) Whether grant of injunction to the plaintiff will place him in an undue advantage which will perpetuate injustice?
(e) Whether the loss/damage likely to be suffered by the plaintiff due to refusal of injunction will be calculable in terms of money?
(f) Whether the party approaching the Court for injunction has suppressed material facts and acted in a mala fide manner?
If the answer to any of these questions is yes, the relief of temporary injunction, which is discretionary in nature, may be rejected while taking the particulars of each case into account.
ATCO LAB.(PVT.) LIMITED V. PFIZER LIMITED
2002 CLD 120
Syed Kamal shah V. Govt. Of N.W.F.P
2010 SCMR 1377
Mst. Sharifan Bibi and others. V. Muhammad Abid Rasheed
2011 YLR 2396
Mst Saeeda V. PROVINCE OF PUNJAB AND OTHERS
2014 CLC 65
Stay Granted where there is no good prima facie case
It is not necessary in all cases of temporary injunction for the plaintiff to have a strong, good prima facie case, rather, an arguable case is sufficient.
Islamic Republic of Pakistan through secretary Ministry of Commerce v. General Traders and Manufacturers LTD through chief executive
2008 CLC 1462
Islamic Republic of Pakistan through secretary Establishment Division Islamabad v Muhammad Zaman Khan and others
1997 SCMR 1508
Pakistan International Airlines Corporation V. Messrs hazir Pvt (Ltd)
PLD 1993 kar 190
Firozuddin Ahmed v. Trading Corporation of Pakistan Ltd
1987 MLD 124
Where interim injunction is granted for a specific date.
Where the interim relief of injunction is granted by the court for a specific date, and it is not extended through a speaking order by that court as such it would lose its efficacy.
Mst Salman Bibi and others V. MEMBER (JUDICIAL -V) BOR CHOEF SETTLEMENT COMMISSIONER AND OTHERS
2013 CLC 776
Where there is no specified date for injunction
As a general rule, it is provided in Rule 2-A of the Order XXXIX of the Code of Civil procedure, 1908 that ordinarily the interim injunction does not exceed 15 days. However, the interpretation is done by the apex courts that this provision is not mandatory in nature rather it is only directory in nature which provides guideline to the court to not grant interim Injunction exceeding 15 days ordinarily. The only requirement is that the court should extend such injunction, however, if the court does not extend by specific order, it would be presumed that the injunction order is extended unless any specific order exists for vacation of such injunction. Reading of rule 2-A and 2-B makes it clear that the mandate of law is the injunction cease to have effect after six months, unless the court extends it for further period by conscious application of mind.
Raja Talat Mehmood V. Ehtisham ul Haq
2000 MLD 1755
Difference between Ad-interim Injunction and Temporary Injunction
Type. As per rule 2A of the Order XXXIX of the Code of Civil procedure, 1908, Ad-interim injunction is one which is granted ex-parte( I e.. in absence of defendant) , whereas, as per rule 2B & 3 of the Order XXXIX of the Code of Civil procedure, 1908, the temporary injunction is one which is ordered after hearing both parties or after serving notice to the defendants.
Relevant Law. Ad-interim injunction is dealt under rule 1,2 &2-A of order XXXIX of Temporary injunction is dealt under section 53 of the Specific Relief Act, 1877 read with rule 1,2,3 of the Order XXXIX of the Code of Civil procedure, 1908.
How to assail. Ad-interim injunction can be discharged, varied, set aside by the trial court itself under order 39, rule 4, it can also be challenged in appellate court under order 43, rule 1. However, the temporary injunction can only be challenged on appellate forum and trial court has no power to change the order once issued.
Muhammad Qasim V. Tahir Saleem
2004 MLD 1820
Record. For temporary injunction, the other documents tendered by other party with his written reply shall also be considered. For ad-interim injunction only those documents can be considered which were part of the record at the time of filing of application for injunction.
Muhammad Zareef Khan V. Muhammad Maroof Khan
2009 YLR 2454.
Duration. Ad-interim injunction ordinarily continues till 15 days until extended. On the other hand, temporary injunction continues till specific date or order or till disposal/decision of suit, which ever is earlier.