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interim orders
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Last updated: 29 October 2009
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INTRODUCTION
According to the dictionary meaning of interim means for the time
being, meanwhile, temporary, provisional, not final, intervening.[1] Thus
interim or interlocutory orders are those order passed by a court during
the pendency of a suit or proceeding which do not determine finally the
substantive rights and liabilities of the parties in respect of the subject
matter of the suit or proceeding. After the suit is instituted by the
plaintiff and before it is finally disposed of the court may make
interlocutory orders as may appear to the court to be just and
convenient. They are made in order to assist the parties to the suit in the
prosecution of the case or for the purpose of protection of the subject
matter of the suit. Courts are constituted for the purpose of doing justice
and must be deemed to possess all such powers as may be necessary to
do the right and undo the wrong in the course of administration of
justice.
Interim orders are necessary to deal with and protect rights of the parties
in the interval between commencement of the proceedings and final
adjudication. They enable the court to grant such relief or to pass such
order as may be necessary, just or equitable. They also prevent any
abuse of process during the pendency of proceedings. Hence interim or
interlocutory proceedings play a crucial role in conduct of litigation
between parties.
The term 'interim order' refers to an order passed by
a court during the pendency of the litigation. It is generally
passed by the Court to ensure Status quo. The rationale for such
orders to be passed by the Courts lie are best explained
by Latin legal maxim "Actus curiae neminem gravabit" which
translated to (English) stand for "an act of the court shall
prejudice no one". Therefore to ensure that the interests of none
of the party to the litigation are harmed, the court may pass an
interim order.
Interim orders passed by the court may be of various courts. The
nature of the order essentially depends on the direction passed
by the Court and on these basis they may be classified as under;
§ Restraining order (also called Injunction), which are passed to stop
either party from acting in a particular manner during the pendency
of the civil action. These are essential passed by the court to prevent
situations in which either party may suffer a harm because the other
party did/continued an act which was the matter in issue and
§ Directive order, which are passed to direct either part to continue
to act in a particular manner till the conclusion of the trial or till
further orders. These may be passed if the non-continuation of the
act would cause harm to the other party.]
An interim order may be passed by the court only if the
following conditions are satisfied;
1. Where there is a prima facie case in favour of the party seeking
the order,
2. Irreparable damage may be caused to the party if the order is
not passed and such damage may not be ascertained in terms or
money and payable as damages, and
3. Where the balance of convenience lies with the party
requesting for the order.[2]
Interim order is passed on the basis of prima facie findings, which are
tentative. Such order is passed as a temporary arrangement to preserve
the status quo till the matter is decided finally, to ensure that the matter
does not become either infructuous or a fait accompli before the final
hearing. The object of the interlocutory injunction is, to protect the
plaintiff against injury by violation of his right for which he could not be
adequately compensated in damages recoverable in the action if the
uncertainty were resolved in his favour at the trial.[3] Grant of an interim
relief in regard to the nature and extent thereof depends upon the facts
and circumstances of each case as no strait-jacket formula can be laid
down. There may be a situation wherein the defendant/respondent may
use the suit property in such a manner that the situation becomes
irretrievable. In such a fact situation, interim relief should be granted.[4]
In Deoraj vs. State of Maharashtra & Ors.[5] the Supreme Court
Court considered a case where the courts below had refused the grant of
interim relief. While dealing with the appeal, the Court observed that
ordinarily in exercise of its jurisdiction under Art.136 of the Constitution,
this Court does not interfere with the orders of interim nature passed by
the High Court. However, this rule of discretion followed in practice is by
way of just self-imposed restriction. An irreparable injury which forcibly
tilts the balance in favour of the applicant, may persuade the Court even
to grant an interim relief though it may amount to granting the final
relief itself. The Court held as under:-
"The Court would grant such an interim relief only if satisfied that
withholding of it would prick the conscience of the court and do
violence to the sense of justice, resulting in injustice being
perpetuated throughout the hearing, and at the end the court would
not be able to vindicate the cause of justice."
Such a course is permissible when the case of the applicant is based on
his fundamental rights guaranteed by the Constitution of India.[6]
Such interim orders may be summarized thus:
1. Commissions : Order 26
2. Arrest before judgement : Order 38
3. Attachment before judgement : Order 38
4. Temporary injunction : Order 39
5. Interlocutory orders : order 39
6. Receiver : Order 40
7. Security for Costs : Order 25
8. Payment in court : Order 24
COMMISSIONS : SECTIONS 75-78 AND
ORDER 26
Section 75 to Section 78 deals with the power of the court to issue
commissions and order 26 lay down detail provisions. The power of the
court to issue commission is discretionary and can be exercised by the
court for doing full and complete justice between the parties.[7] Section
75 runs as under:
75. Power of court to issue commissions- Subject to such conditions
and limitations as may be prescribed, the court may issue a
commission-
(a) to examine any person;
