Ex Parte Interim Injunction in a Specific Performance Suit: Order 39 Rule 3 and Article 54
On 12 March 2019, Rajesh of Sector 15, Gurugram, agreed to buy from Suresh a 250 sq. yd. plot in Faridabad for ₹80 lakh. Rajesh paid ₹8 lakh as earnest money; the registered agreement fixed 11 November 2019 for execution of the sale deed, with possession handed over at registration. Suresh in fact put Rajesh in possession immediately, and Rajesh has since built a boundary wall and paid the electricity dues. Suresh refused to execute the deed on the appointed date. On 6 January 2024 Rajesh sued for specific performance and permanent injunction in the Civil Court at Faridabad, and moved under Order 39 Rules 1 and 2. On 9 January 2024 the court granted an ex parte ad interim injunction restraining alienation, recording no reason for dispensing with notice and giving no direction for compliance with the proviso to Rule 3. On 2 February 2024 Suresh applied under Order 39 Rule 4, pleading that the suit is barred by Article 54 of the Limitation Act and that no injunction can issue under Section 41(e) of the Specific Relief Act.
1. Was the ex parte ad interim injunction of 9 January 2024 sustainable, and what is the correct procedural course open to Suresh?
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The Rule 3 defect. Order 39 Rule 3 requires notice to the opposite party unless the object of the injunction would be defeated by delay; where notice is dispensed with, the court must record reasons in writing and direct the applicant to deliver copies of the application, plaint and affidavit to the defendant forthwith. An order that records no reason and does not call for compliance with the proviso is irregular. The remedy, however, is not a revision: Rule 3A and Rule 4 expressly enable the same court to vary or vacate the order, and in A. Venkatasubbiah Naidu v. S. Chellappan (2000) 7 SCC 695 the Supreme Court held that a defendant must ordinarily exhaust the Order 39 Rule 4 remedy before invoking Article 227.
The three tests. An injunction is discretionary and requires a prima facie case, balance of convenience and irreparable injury. On the plaint as it stands, the agreement fixed 11 November 2019 for performance, and Article 54 of the Limitation Act allows three years from that date; the suit filed on 6 January 2024 is therefore prima facie barred. A claim that is ex facie time-barred cannot supply a prima facie case, and because the plaint itself discloses both dates, the bar is apparent on its face and may be taken up at any stage, including on a Rule 4 application (Order 7 Rule 11(d)).
Order. The ad interim injunction ought to be vacated; the Rule 4 application should be heard after notice to the plaintiff; and, unless an acknowledgment under Section 18 of the Limitation Act is pleaded, the court should consider rejection of the plaint under Order 7 Rule 11(d). The irregularity in the original order, standing alone, might not have justified interference; the limitation bar does.
2. Suresh argues that no injunction can issue at all because Section 41(e) of the Specific Relief Act bars injunctions preventing the breach of a contract that cannot be specifically enforced, and a contract for sale of immovable property cannot be specifically enforced. Is that argument sound after the 2018 amendment, and does it matter that Rajesh is in possession?
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The premise is outdated. Section 41(e) still says that an injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced. But since the Specific Relief (Amendment) Act, 2018, Section 10 makes specific performance the rule rather than an exceptional remedy, and Section 14 no longer excludes a contract merely because compensation would be an adequate relief; the surviving bars are those in Section 14(a) to (d) and Section 11 (contracts by or against a minor or a person of unsound mind). A registered agreement to sell immovable property is therefore, as a class, specifically enforceable, subject to Section 16(c) readiness and willingness.
Section 41(e) is not the obstacle here. On these facts Section 41(e) would not defeat the injunction, because the contract is of a kind that is ordinarily specifically enforceable and Rajesh has paid the earnest money and is in possession. Section 53A of the Transfer of Property Act protects his possession as a transferee who has performed his part and is willing to perform; an injunction restraining alienation is also of limited prejudice because a purchaser pendente lite would be bound by Section 52 of the Transfer of Property Act.
The real answer. The argument to be accepted in Suresh's favour is limitation, not Section 41(e). A court should resist the temptation to decide the Rule 4 application on the sweeping Section 41(e) plea and should decide it on the narrow, decisive ground that the plaint discloses a time-barred claim.
3. Suppose Rajesh produces a signed letter of Suresh dated 5 January 2022 acknowledging the agreement and promising to execute the sale deed "after the mutation is complete". How does that alter the analysis, and how should the court now deal with the Rule 4 application?
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Effect of the acknowledgment. Section 18 of the Limitation Act provides that where, before the expiry of the prescribed period, an acknowledgment of liability in respect of the property or right has been made in writing signed by the party against whom the right is claimed, a fresh period of limitation runs from the date of the acknowledgment. The letter of 5 January 2022 falls well within the three years running from 11 November 2019, is signed by Suresh, admits the subsisting agreement and promises performance. Limitation therefore restarts on 5 January 2022 and the suit filed on 6 January 2024 is within time.
Consequences. (i) The bar under Article 54 disappears, the plaint ceases to disclose a ground under Order 7 Rule 11(d), and the rejection argument must be rejected. (ii) An acknowledgment need not be a promise to pay or perform; an unconditional admission of the subsisting liability suffices, and the recital about mutation is a statement of the mode of performance, not a condition destroying the admission. It must, however, be pleaded and proved, and a bare assertion in the application is not enough. (iii) The Rule 4 application must now be decided on the three injunction tests. Rajesh is in settled possession under Section 53A, has paid consideration, and the subject matter is a specific plot; the balance of convenience lies with preserving the status quo, so the injunction against alienation may be continued, preferably with a direction to Suresh to file his written statement and to the plaintiff to take steps for early trial.