Author: Meenakshi Raj
Law can be broadly categorized into two types: Substantive law, that is, the laws by which duties, rights, and liabilities are defined e.g. Indian Penal Code and Procedural law i.e., the law that prescribes the mode by which the application of the substantive law is to be regulated e.g. Civil Procedure Code. “CPC is one of the most important branches of procedural law which is enacted to consolidate and amend the laws relating to the procedure to be followed in the civil courts and the parties before it, till the time of degree and order”.
What is an Order?
The Civil Procedure Code defines Order under Section 2 (14), as “the formal expression of any decision of a Civil Court which is not a decree and is found upon the objective considerations and as a judicial order containing discussion of the question at issue and the reasons which prevailed with the court leading to the passing of the order”.
What are the types of an Order?
Generally, an Order is of two types: –
Appealable Order: The Order in which the court can add any person as a party at any point in the proceedings.
Non-Appealable Order: The Order of the Bankruptcy Court which is in effect and as to which, the time to appeal, petition for certiorari or rehearing has expired and shall not be pending or those have been affirmed by the highest court to which such order shall have been denied or resulted in no modification of such order, and the time to take any further step has expired.
Essential Ingredients of an Order
For an Order to be accepted, there are certain essential ingredients. These are: –
· It should be the formal decision of any decision.
· The decision should be pronounced by the Civil Court.
· The formal expression should not be a decree.
Orders may be further summarised as:
Commissions: Order 26.
Arrest before judgement: Order 38.
Attachment before judgement: Order 38.
Temporary injunction: Order 39.
Interlocutory/ Interim orders: order 39.
Receiver: Order 40.
Security for Costs: Order 25.
Payment in court: Order 24.
Introduction to an Interim Order
According to the dictionary meaning, the word interim means for the time being, temporary, provisional or not final. Thus, according to the law, an Interim Order refers to “an order passed by the court during the pendency of a suit or proceedings to ensure that the interest of the parties to the litigation are not harmed and the subject matter of the suit is maintained”.
The courts in a country are constituted to maintain peace and order and to provide justice to ensure “Status quo” by possessing all such powers as to be necessary to do the right and to undo the wrong to the parties in the interval between the commencement of the proceedings and final adjudication.
For instance, there is a dispute between A and B relating to a property. B makes an application to the court asking the court to restrict A from selling the property to the third party or doing any construction on the said property until the final orders are given out. To protect B’s rights and ensure protection and justice to B, the court passes an order for B’s relief until the final judgment is given. The order passed is called an interim order.
An Interim order, depending upon the nature of the direction issued and passed by the Court, may be classified as under:
Restraining orders (also called Injunction): These orders are issued by the court to stop either party from acting in a particular manner during the pendency of the civil action. These are essentially issued by the court to prevent situations in which either party may suffer harm because the other party did/continued an act which was the matter in issue.
Directive orders: The orders issued to direct either party to continue to act in a particular manner until the conclusion of the trial or until further orders are issued. Directive orders may be issued if the non-continuation of the act would cause harm to the other party.
When can an Interim Order be passed in India?
In India, an interim order can be passed either under the Specific Relief Act 1963 or in terms of Section 151 of the Civil Procedure Code of 1908. However, an interim order may be passed by the court only if the following conditions are satisfied;
Where there is a prima facie case in favour of the party seeking the order,
Or, irreparable damage may be caused to the party if the order is not passed and such damage may not be ascertained in terms of money and payable as damages,
Or, where the balance of convenience lies with the party requesting the order.
In a landmark order, the Supreme Court stripped a Manipur minister, Thounaojam Shyamkumar Singh of his office and barred him from entering the Legislative Assembly. The order may appear unusual but it was a drastic step to be taken in the necessary course of action.
Elected as a Congress candidate, T. Shyamkumar Singh defected to the BJP to join the Biren Singh cabinet. Justice Rohinton F. Nariman, heading the bench, gave emphasis to the landmark judgment in January, which had put an end to the deliberate inaction of Presiding Officers on petitions for disqualifying defectors. He ruled that “Courts have the power to fix a time-frame for speakers to dispose of a petition under the Anti-defection law”. The court, in the Manipur case, had given a reasonable period of 4 weeks, the defection complaint being pending since 2017 yet the Speaker failed to comply with it. He promised a decision seeking some time but failed to comply with it. It is in this background that the court invoked its “extraordinary powers under Article 142 of the Constitution” to take the sort of measures that would kick in if the defector concerned has been disqualified.
The Order being of interim nature, and out of respect for the Speaker’s power, the Court restrained from deciding the matter itself, even though there was ample evidence that the Speaker had failed to discharge his duty, and gave a grant to the Speaker to decide the matter. A strong message, however, has been sent out that “courts will no longer aid in the attempts to protect the defectors from the consequences of their floor-crossing.
Interim Orders have always been helpful and are necessary in providing justice to a party until the final Order is laid down by the Judge. Where on one hand, it assures justice, on the other hand, it may lead to misuse of justice, if the guidelines issued by the courts are not analyzed properly. To be thought is the fact that if the average court’s time is decreased, there might not be a need of passing the interim order and justice would be provided in due time.