Drafting of Interlocutory Applications — IAs →

An interlocutory application (IA) is the workhorse of civil litigation: a self-contained, mid-suit request that asks the court to do something now — restrain a sale, stay a proceeding, attach property, bring a dead party's heirs on record — without waiting for the final decree. For the judiciary and CLAT-PG aspirant, drafting an IA is tested both as a format question (the prayer, the cause-title, the supporting affidavit) and as a doctrine question (the triple test for injunctions, the mandatory proviso to Order 39 Rule 3, the source of the court's power in Section 94 and Section 151 of the Code of Civil Procedure, 1908). This article ties the two together: it shows you the anatomy of a correctly drafted IA and grounds every limb in the controlling authority you will be expected to cite.

What an Interlocutory Application Is — and Is Not

An interlocutory application is any application made to the court during the pendency of a suit, appeal or proceeding that seeks a relief which is ancillary, provisional or procedural rather than a final adjudication of the controversy. The word "interlocutory" simply means "between" — between the institution of the suit and its final disposal. The IA does not decide the lis; it manages the lis while the lis is being decided. A temporary injunction restraining the defendant from felling trees on the suit land settles nothing about title; it only freezes the position so that the eventual decree is not rendered a paper victory.

The Code of Civil Procedure, 1908 does not use the phrase "interlocutory application" as a defined term, but Section 94, sitting in Part VI ("Supplemental Proceedings"), is the textual hook. It empowers the court, "in order to prevent the ends of justice from being defeated," to issue a warrant of arrest before judgment, to order attachment before judgment, to grant a temporary injunction, to appoint a receiver, and — in the residual clause (e) — to "make such other interlocutory orders as may appear to the Court to be just and convenient." Each of those heads is fleshed out by a corresponding Order: Order 38 (arrest and attachment before judgment), Order 39 (temporary injunctions and interlocutory orders) and Order 40 (receivers). The IA is the procedural vehicle that invokes these powers.

It is important to distinguish the IA from the main pleadings. The plaint and the written statement frame the dispute; the IA operates within that frame. An IA cannot enlarge the suit, introduce a fresh cause of action, or grant a relief the plaint itself does not ultimately seek. A temporary injunction must be tethered to a substantive claim for a permanent injunction or some right that the interim order protects — the court will not grant interim relief in the air.

The Statutory Architecture: Section 94, Section 151 and the Orders

Two sources of power animate most IAs. The first is the express, enumerated power in Section 94 read with the relevant Order. The second is the court's inherent power under Section 151 CPC, which preserves "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." The relationship between the two was authoritatively settled in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527. There, parties had filed mirror suits in Asansol and Indore, and the question was whether a court could restrain a party from prosecuting the parallel suit by temporary injunction even though the case fell outside the express language of Order 39 Rules 1 and 2.

The Supreme Court held that the provisions of the Code do not control or limit the inherent powers of the court saved by Section 151, and that a court may, in an appropriate case, grant a temporary injunction in exercise of its inherent power where the case is not covered by Order 39. The caveat the Court added is the one examiners love: inherent power cannot be exercised in conflict with an express provision; it fills gaps, it does not override the Code. For the draftsman this matters because the foundation clause of an IA must correctly identify its source — "under Order 39 Rules 1 and 2 read with Section 151" is the conventional belt-and-braces formula, invoking the express power and, as a fallback, the inherent one.

Section 94's residual clause (e) is the textual basis for the great variety of "other" IAs that the Code does not separately catalogue — applications for amendment of pleadings under Order 6 Rule 17, for appointment of a commissioner under Order 26, for production of documents, for condonation of delay, and so on. Each carries its own procedural skin, but all share the IA's essential architecture.

Anatomy of a Well-Drafted IA

A properly drafted interlocutory application has a fixed skeleton, and examiners award marks for getting the bones right. First comes the cause-title: the name of the court, the suit number, and the array of parties exactly as in the plaint, followed by a heading identifying the application — for example, "Application under Order 39 Rules 1 and 2 read with Section 151 CPC for grant of temporary injunction." The applicant must be described in the same character as in the suit ("the plaintiff/applicant" or "defendant no. 2/applicant") so the court can see at a glance who moves and in what capacity.

Second comes the body, drafted in short, numbered, consecutively-running paragraphs. Each paragraph states one fact. The body should briefly recite the nature of the suit, set out the specific facts that give rise to the interim relief, and — crucially for an injunction — plead the three ingredients of the triple test in terms: that the applicant has a prima facie case, that the balance of convenience lies in his favour, and that he will suffer irreparable injury not compensable in money if the relief is refused. A draft that omits any of these limbs is incomplete on its face.

Third comes the prayer, the operative request, which must be precise, specific and capable of being worked into an enforceable order. A vague prayer — "pass such order as the court deems fit" standing alone — is fatal; the relief must be spelt out ("restrain the defendants, their servants and agents, from alienating, transferring or creating any third-party interest in the suit property described in Schedule A pending disposal of the suit"). Fourth comes the verification and signature of the applicant and counsel. Fifth, and indispensable, is the supporting affidavit sworn by the applicant, deposing to the facts pleaded in the application; without an affidavit, the application is unsupported by evidence and an injunction cannot ordinarily issue.

The Triple Test: Dalpat Kumar and the Three Conjunctive Limbs

The single most important doctrine for drafting an injunction IA is the triple test, and the controlling authority is Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 (AIR 1993 SC 276). The Supreme Court held that for the grant of a temporary injunction under Order 39 Rules 1 and 2, three conditions must be satisfied conjunctively: (i) the applicant must establish a prima facie case; (ii) the balance of convenience must be in his favour; and (iii) he must show that he would suffer irreparable injury if the injunction is refused. The Court was emphatic that proof of a prima facie case alone is not enough — all three must coexist.

The Court explained each limb. A prima facie case does not mean that the applicant must prove he will ultimately succeed; it means there is a serious question to be tried and that, on the material before the court, there is a probability of his being entitled to the relief claimed. "Irreparable injury" means an injury that cannot be adequately compensated in damages — not that it is incapable of physical repair, but that the harm is of such a kind that monetary compensation would not be a complete or adequate remedy. "Balance of convenience" requires the court to weigh the comparative mischief or inconvenience that would flow from granting or withholding the injunction, and to grant it only where the inconvenience to the applicant from refusal outweighs that to the respondent from grant.

For the draftsman, Dalpat Kumar dictates the structure of the body paragraphs: a competent IA pleads each of the three limbs as a distinct, fact-supported assertion. A court that grants an injunction is also expected to apply its mind to all three; on the facts of Dalpat Kumar itself, the Supreme Court set aside the High Court's injunction because that court had not properly weighed the three conditions.

Ex Parte Injunctions and the Mandatory Proviso to Order 39 Rule 3

Often the applicant needs relief before the defendant can be heard — because the very act of giving notice would let the defendant defeat the relief (selling the property overnight, demolishing the structure). Order 39 Rule 3 permits the court to grant an injunction without notice to the opposite party, but the proviso, inserted by the 1976 amendment, imposes strict conditions. Where the court proposes to grant an ex parte injunction, it shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and it shall require the applicant to deliver to the opposite party, immediately after the order, copies of the application, the affidavit, the plaint and the supporting documents, and to file an affidavit on the same or the next day stating that this has been done.

The leading authority is Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161. The Supreme Court held that the requirement to record reasons under the proviso is not an empty formality but a mandatory requirement, attracting the principle that where a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all. The Court reasoned that recording reasons disciplines the judicial mind and guards against the casual, mechanical grant of ex parte orders that can cause grave and irreversible prejudice. It directed that an ex parte injunction should ordinarily be limited in time and that the proviso's service-and-affidavit obligations must be complied with.

The practical lesson for drafting is that an IA seeking an ex parte injunction must specifically plead the urgency — the facts showing that the object of the injunction would be defeated by the delay involved in issuing notice — and must be prepared to comply with the service obligation. Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225, reinforces this discipline: the Supreme Court there enumerated the factors a court must weigh before granting an ex parte injunction, including whether irreparable mischief would result, the conduct and good faith of the applicant, the need for the applicant to make full and frank disclosure, and the principle that the court should be slow to grant such relief and must do so only when satisfied that withholding it would defeat the very purpose of the suit.

Equity, Conduct and the Clean-Hands Doctrine

An injunction is an equitable, discretionary remedy, and equity looks to the conduct of the party who seeks it. The point is crisply made in Gujarat Bottling Co. Ltd. v. Coca Cola Co., (1995) 5 SCC 545. The Supreme Court observed that the grant of an interlocutory injunction is in the exercise of judicial discretion, and that the party invoking that discretion must come with clean hands and must not, by his own conduct, have disentitled himself to the equitable relief he seeks. A litigant who suppresses material facts, makes a false statement, or approaches the court with a tainted record may be refused an injunction even if he could otherwise make out a prima facie case.

The case is also a leading authority on the enforceability of negative covenants: the Court upheld an interim injunction enforcing the negative covenant in the bottling agreement (not to bottle competing brands during the term), holding it valid and not a restraint of trade under Section 27 of the Contract Act, and enforceable under Section 42 of the Specific Relief Act even where the positive part of the contract is not specifically enforced. For the draftsman, Gujarat Bottling teaches two things: plead and disclose candidly, because the suppression of facts is itself a ground for refusal; and, where the relief sought is the enforcement of a negative stipulation, frame the prayer in terms of restraint rather than compulsion.

This equitable lens connects the IA to the fundamental rules of pleading: the same duty of candour and material-facts disclosure that governs a plaint governs the affidavit supporting an IA, and a false or evasive verification can sink the application.

Drafting a Temporary Injunction IA Step by Step

Bringing the doctrine together, a model temporary-injunction IA proceeds as follows. The cause-title invokes "Order 39 Rules 1 and 2 read with Section 151 CPC." The opening paragraph identifies the suit and the relief claimed in it (say, a suit for permanent injunction and declaration of title). The next paragraphs narrate the facts that show the applicant's title or right and the threatened invasion of it — for instance, that the defendant has begun construction on the suit land or has advertised it for sale.

The application then pleads the three limbs of the triple test in terms: a paragraph asserting the prima facie case (with reference to documents of title annexed); a paragraph asserting that the balance of convenience favours the applicant because the status quo can be preserved at no real prejudice to the defendant, whereas alienation or construction would alter it irreversibly; and a paragraph asserting irreparable injury, explaining specifically why damages would not be an adequate remedy (the property is unique, third-party rights would intervene, the structure could not be undone). Where ex parte relief is sought, a further paragraph pleads the urgency required by the proviso to Order 39 Rule 3.

The prayer asks the court to "restrain the defendants, by themselves, their servants, agents and assigns, from alienating, encumbering, or raising any construction upon, or in any manner altering the nature of, the suit property described in the Schedule, until the final disposal of the suit," together with a prayer for ad interim relief and an omnibus prayer for such further orders as the court deems just. The application is verified and accompanied by an affidavit of the plaintiff swearing to the facts. A separate application for ad interim ex parte relief is often filed simultaneously so the court can grade the relief.

Beyond Injunctions: Attachment Before Judgment and Receivers

Not every IA is an injunction. Order 38 governs arrest and attachment before judgment. Under Order 38 Rule 5, where the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property, or is about to remove it from the local limits of the court's jurisdiction, the court may direct the defendant to furnish security or, in default, may attach the property. The power is drastic and is to be exercised sparingly; a bare apprehension is not enough, and the application must plead the specific facts grounding the requisite intent — the draftsman cannot simply parrot the statutory language.

Order 40 empowers the court to appoint a receiver where it appears just and convenient, to take possession, collect rents and manage property pending the suit. An application for a receiver, like an injunction IA, must show a strong prima facie case and that the appointment is necessary to protect the property from waste or dissipation; the receiver is the court's officer, and the relief is regarded as among the harshest the court can grant. Both heads trace back to Section 94 — clause (b) for attachment, clause (d) for receivers — and both demand a supporting affidavit deposing to the facts.

A further common IA is the application to stay a suit. While Section 10 (res sub judice) operates by its own force to stay a later-instituted suit, parties routinely move a formal IA drawing the court's attention to the pending parallel proceeding; and where Section 10 does not strictly apply, the court's inherent power under Section 151 — as recognised in Manohar Lal Chopra — may be invoked to stay proceedings to prevent multiplicity and abuse.

Procedural IAs: Substitution, Abatement and Condonation of Delay

A large class of IAs is purely procedural but no less exam-relevant. Under Order 22 Rule 4, on the death of a defendant whose right to sue survives, the plaintiff must apply to bring the legal representatives of the deceased on record; failure to do so within the limitation period causes the suit to abate against that defendant. The remedy is a two- or three-fold set of IAs filed together: an application under Order 22 Rule 4 for substitution; an application under Order 22 Rule 9 to set aside the abatement (if it has already occurred); and an application under Section 5 of the Limitation Act for condonation of the delay, supported by an affidavit explaining the "sufficient cause." Courts construe "sufficient cause" liberally in substitution and abatement matters to advance substantial justice, provided the delay is not the product of negligence, mala fides or deliberate inaction.

Condonation-of-delay IAs more generally follow the same pattern: a short application reciting the cause and extent of the delay, a prayer to condone it, and a supporting affidavit. The affidavit is the heart of the application because the court decides on the explanation offered on oath. Other workhorse procedural IAs include applications under Order 6 Rule 17 to amend pleadings, under Order 1 Rule 10 to add or strike out parties, and under Order 11 for discovery and inspection — each a self-contained application invoking its specific Order and Section 151 as a fallback.

The Supporting Affidavit: Evidence on Oath

No IA seeking discretionary relief is complete without a supporting affidavit, and Order 19 governs affidavit evidence. The affidavit must be confined to facts the deponent can prove from his own knowledge, save that on interlocutory applications statements of belief may be admitted provided the grounds of belief are stated. The deponent must distinguish, paragraph by paragraph, between facts within his personal knowledge and facts derived from information and belief, identifying the source. A loose, omnibus affidavit that swears the entire application to be "true and correct" without this differentiation is defective and may be disregarded.

For an ex parte injunction the affidavit carries an even heavier burden because the court acts on it alone. Morgan Stanley v. Kartick Das stresses the applicant's duty of full and frank disclosure: an applicant who obtains an ex parte order by suppressing material facts risks not only its vacation but also strictures for abuse of process. The affidavit should therefore disclose facts adverse to the applicant as well as those that favour him — equity, as Gujarat Bottling reminds us, will not aid a litigant who hides the ball. The same verification discipline that governs a plaint's verification under Order 6 Rule 15 applies here: a defective verification or affidavit is a remediable irregularity but an avoidable one.

Appellate Review of Interim Orders: The Wander Principle

An order on an IA for injunction is not the last word, but the scope for challenging it is deliberately narrow. Under Order 43 Rule 1(r) CPC, an appeal lies against an order granting, refusing, varying or vacating an injunction under Order 39 Rules 1, 2, 2A, 4 and 10 — whether the order is ex parte or inter partes, and whether speaking or non-speaking. The aggrieved party against an ex parte injunction has, in fact, two routes: an application under Order 39 Rule 4 to the same court to vary or vacate the order, or an appeal under Order 43 Rule 1(r).

But the appellate court's power is heavily circumscribed by Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727. The Supreme Court held that the grant or refusal of an interlocutory injunction is an exercise of discretion by the court of first instance, and the appellate court will not interfere with that discretion merely because it would have come to a different conclusion. It may interfere only where the discretion has been exercised arbitrarily, capriciously, perversely, or in ignorance of settled principles, or where the lower court has misread the evidence or ignored relevant material. The appellate court does not substitute its own discretion for that of the trial court; it reviews the manner of exercise of the discretion.

For the litigant this shapes strategy: because the trial court's discretion is so insulated, the place to win an injunction is at first instance, with a fully pleaded, affidavit-backed IA that squarely addresses each limb of the Dalpat Kumar triple test. A weak IA cannot easily be rescued on appeal under the Wander standard.

Common Drafting Errors and How to Avoid Them

Examiners and trial judges see the same mistakes repeatedly. The first is the vague or unenforceable prayer — an injunction that does not identify the property by schedule, or that asks for relief wider than the suit can support. The prayer must be specific enough that a process-server and a contempt court can both understand exactly what is restrained.

The second is the omission of one limb of the triple test. Many drafts plead a strong prima facie case and then fall silent on irreparable injury or balance of convenience; Dalpat Kumar makes all three conjunctive, so silence on any limb is a substantive defect, not a cosmetic one. The third is the missing or defective affidavit — either none is filed, or it swears to facts the deponent could not know without disclosing the source of belief.

The fourth, peculiar to ex parte applications, is failure to plead urgency and comply with the proviso to Order 39 Rule 3; after Shiv Kumar Chadha, an ex parte order unsupported by recorded reasons and unaccompanied by the mandated service is vulnerable to being set aside on that ground alone. The fifth is suppression of material facts, which Gujarat Bottling and Morgan Stanley treat as fatal to equitable relief. Avoiding these five errors is most of the battle. For the broader principles that underlie all good court drafting, see the introduction to pleading and drafting and the hub of pleading and drafting notes.

Exam Strategy: Format Plus Doctrine

Pleading and Drafting papers test the IA in two registers. The drafting register asks you to draft a specified IA — most commonly an application for temporary injunction, sometimes for attachment before judgment, stay, substitution or condonation. Here marks turn on the skeleton: correct cause-title and provision, numbered factual paragraphs, all three triple-test limbs where it is an injunction, a precise prayer, verification, and a note that the application is supported by an affidavit. Reproducing the framework faithfully, even with sparse facts, scores reliably.

The doctrine register asks you to state the principles: the triple test from Dalpat Kumar; the mandatory proviso to Order 39 Rule 3 from Shiv Kumar Chadha; the ex parte factors from Morgan Stanley; the clean-hands and discretion principle from Gujarat Bottling; the inherent-power foundation from Manohar Lal Chopra; and the appellate non-interference standard from Wander. Pairing the format with the right authority is what separates a competent answer from a top one. A candidate who can both draft the prayer and name Dalpat Kumar in the same breath demonstrates exactly the integration the examiner is looking for.