Interim Relief, Trial and Judgment under the CPC — Practice

Question 1

State the three tests for a temporary injunction.

Accepted Answer

A prima facie case, balance of convenience and irreparable injury if relief is refused.

Question 2

Within how many days must a defendant seek leave to defend a summary suit?

Accepted Answer

Ten days from service of the summons for judgment, under Order XXXVII.

Question 3

What happens if the plaintiff is absent on the hearing date and what remedy is there?

Accepted Answer

Under Order IX Rule 8 the suit is dismissed. Rule 9 bars a fresh suit on the same cause of action, but the plaintiff can apply to restore the suit by showing sufficient cause.

Question 4

When do issues arise and what is a preliminary issue?

Accepted Answer

Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other (Order XIV Rule 1). A preliminary issue is an issue of law, such as jurisdiction or a statutory bar, that can dispose of the suit and so is tried first under Rule 2.

Question 5

What is the effect of withdrawing a suit without leave under Order XXIII?

Accepted Answer

Under Rule 1(4), the plaintiff is precluded from instituting a fresh suit on the same subject-matter.

Question 6

A plaintiff seeks an interim injunction against demolition of her shop, saying the defendant has threatened it. Decide.

Accepted Answer

Order XXXIX Rule 1 applies as the property is in danger of damage. The court applies the three tests: whether she has a prima facie title or possession, whether the balance of convenience favours preserving the shop, and whether demolition would cause irreparable injury, which it would because a demolished shop cannot be restored. If urgent, the court may grant an ex parte order with reasons under Rule 3 and issue notice.

Question 7

What does Section 89 require of the court?

Accepted Answer

Where elements of a settlement appear to exist, the court must formulate the terms and refer the dispute to arbitration, conciliation, judicial settlement including settlement through Lok Adalat, or mediation. Afcons Infrastructure v. Cherian Varkey (2010) explained the procedure and which cases are suitable.

Question 8

Define decree under Section 2(2).

Accepted Answer

The formal expression of an adjudication which, so far as the court expressing it is concerned, conclusively determines the rights of the parties on matters in controversy in the suit.

Practice — Interim Relief, Trial and Judgment under the CPC

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