Order XXXIX Rule 3 CPC - Notice Before Granting Temporary Injunction
Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 (CPC) requires a court ordinarily to give the opposite party notice before granting a temporary injunction. An injunction without prior notice, commonly called an ex parte injunction, is an exception where delay would defeat the purpose of the relief.
Text of Order XXXIX Rule 3 CPC
The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:
Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-
- to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-
- a copy of the affidavit filed in support of the application;
- a copy of the plaint; and
- copies of documents on which the applicant relies; and
- to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.
Meaning and purpose of Rule 3
Temporary injunction: an interim judicial order restraining specified conduct while the suit or relevant proceedings remain pending. Notice: communication giving the opposite party an opportunity to respond to the injunction request. Ex parte: an order made without hearing the opposite party at that stage. Affidavit: a written statement of facts affirmed or sworn in the legally prescribed manner.
The rule balances urgent protection with procedural fairness. Ordinarily the defendant should be heard. Where advance notice risks making relief ineffective, the court may dispense with it but must explain why delay would defeat the injunction's object.
Requirements for an injunction without prior notice
- Demonstrate urgency: identify specific facts showing why giving notice first would defeat the requested protection.
- Recorded judicial reasons: the court must record its reasons for proceeding without notice; urgency is not presumed merely because it is asserted.
- Immediate delivery or dispatch: after the order, the applicant must deliver or send the injunction application, supporting affidavit, plaint and relied-upon documents to the opposite party as Rule 3 specifies.
- Affidavit of compliance: file an affidavit on the day of the injunction or the immediately following day confirming delivery or dispatch.
These are statutory safeguards. Failure to comply can be raised when the order is challenged, although the consequences depend on the circumstances and judicial determination.
Judicial principles governing temporary injunctions
In considering interim relief under Rule 1 or Rule 2, courts ordinarily consider whether there is a prima facie case, whether the balance of convenience favours relief, and whether refusal could cause irreparable injury. These principles do not displace the separate notice and recorded-reasons requirements in Rule 3.
Related provisions and remedies
Order XXXIX Rule 3A requires the court to endeavour to finally dispose of an injunction application within 30 days where an injunction was granted without notice, and to record reasons if it cannot do so. Rule 4 provides for discharge, variation or setting aside of an injunction. An appeal may be available under Order XLIII Rule 1(r), subject to the nature of the order and applicable law.
Statutory and official resources
Consult the Code of Civil Procedure, 1908 on India Code for the official statutory text and amendments, and the Supreme Court of India for authoritative judgments. Check applicable state amendments and local court rules before relying on the central text in a particular proceeding.
Frequently asked questions
Is notice compulsory before every temporary injunction?
No. Notice is the general rule, but the court may grant an injunction without prior notice if delay would defeat its object and the statutory safeguards are observed.
Must the court give reasons for an ex parte injunction?
Yes. Rule 3 expressly requires the court to record reasons for its opinion that delay would defeat the injunction's object.
When must the applicant file proof of service?
The affidavit confirming delivery or dispatch of the prescribed copies must be filed on the day the injunction is granted or the immediately following day.
This article explains the general central CPC framework. Court rules, amendments and the facts of a particular case may affect procedure and available remedies.