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DRAFTING, PLEADING AND

CONYANCE

TOPIC: APPEAL AND JUDGEMENT ANALYSIS

OF GHUREY LAL VS STATE OF U.P.

AN ASSIGNMENT
SUBMITTED TO THE

UNIVERSITY INSTITUTE OF LAW

PANJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA

B.A. LL.B.
2020-2021

SUPERVISED BY: SUBMITTED BY:

Dr. Vandana Bhanot Adesh Partap
Roll no.: 47

UNIVERSITY INSTITUTE OF LAW, PANJAB UNIVERSITY,

REGIONAL CENTRE, LUDHIANA
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ACKNOWLEDGMENT

I wish to express my heartfelt gratitude to Dr. Vandana Bhanot, my

mentor and supervisor for this term paper. It has been under her
constant and sincere guidance, auspices and motivation that I have
been able to get through with this term paper. She have lighted the
path for me with her expertise and attention throughout the course
of this term paper and it would not have been possible to have come
through with the research if not for her persistent counseling and
persuasion. I feel highly indebted to there concern and involvement
in the realization of this study.

I would also like to thank Prof. (Mr.) Ravi Inder Singh for being the
cornerstone of support and enlightenment for as long as I have been
concerned with the making of this term paper.
I would like to thank the staff of the library of University Institute
of Laws, Panjab University Regional Centre, Ludhiana for
providing me all the relevant books and material for the completion
of my assignment.

Lastly, I would take an opportunity to thank family, friends and

associates for putting up and sticking up from end to end of the
progression of this research.

Adesh Partap
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TABLE OF CONTENTS

S.NO. TOPIC PAGE NO.

1. Acknowledgment 2
2. Lists of Abbreviations 5
3. Introduction 6

4. Meaning 7

5. Nature 7

6. SECTION 372 8

7. SECTION 373 8

8. SECTION 374 8

9. SECTION 375 9

10. SECTION 376 10

11. SECTION 377 11

12. SECTION 378 11

13. SECTION 379 12

14. SECTION 380 13

15. SECTION 383 13

16. SECTION 384 13

17. SECTION 385 14

18. SECTION 386 14

19. Conclusion 15
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LIST OF ABBREVIATIONS

1. AIR – All India Reporter

2. Anr. – Another
3. Cr.P.C. – Criminal Procedure Code
4. Crl. - Criminal
5. IPC – Indian Penal Code
6. No. – Number
7. Ors. – Others
8. S. – Section
9. SC – Supreme Court
10. SCC – Supreme Court Cases
11. Vs./V. – Versus
12. U/S – Under Section
13. P.W. – Prosecution Witness
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Table of Contents
 Introduction
 Temporary injunction
o Rule 1: Cases where the temporary injunction is granted
o Rule 2: Restraining a breach
o Rule 2A: Punishment for breaching the injunction
o Rule 3: Notice to the opposite party
o Rule 3A: Time period prescribed to dispose of the application
o Rule 4
o Rule 5: Injunction against a corporation
 Principles to be followed as per the judgements
 Necessary contents in the application for a temporary injunction
 Common mistakes while drafting
 Tips to draft a good application
 Sample Application
 Conclusion
 References

Introduction
Temporary Injunction is one of the most common remedies provided to prevent mischief from
being committed, by a party to the suit. Injunctions, as stated under section 37 of the Specific
Relief Act, are of two types: Temporary and perpetual injunctions.

Temporary injunctions are granted for a specific period of time and can be revoked either by a
subsequent order of the court or the final judgement in the suit. Order 39 of CPC (procedural law)
prescribes rules and procedures to be followed while considering a grant of this relief.

It becomes of utmost importance to draft a good application that puts forward a strong set of facts
in favour of the applicant for this relief to be granted.

Along with discussing the temporary injunction, in brief, this article will help the reader gain an
insight into drafting a good application for a temporary injunction.

Temporary injunction
A temporary injunction, in simple terms, is a remedy provided to counter an actual threat posed
by one party to the other, in terms of damaging the property or harming the party in person. There
are certain grounds on the merits of which an application is judged and it is decided if the
injunction should be provided or not. The Rules mentioned under Order 39 lay down procedures
for the courts to follow in order to grant this relief to a party to the suit and are discussed in brief:
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Rule 1: Cases where the temporary injunction is

granted
When there is a prima facie case in favour of a party and the following points can be easily drawn
from the application:

 The disputed property is under the risk of being damaged, alienated or sold.
 There is a threat or an intention on the part of the defendant to dispose of the property
to defraud his creditors.
 The plaintiff has been threatened of being dispossessed (of the disputed property) or
of being physically injured by the defendant.
The court may grant a temporary injunction to restrict or to prevent the party from threatening to
cause damage or causing damage. Temporary Injunction can be granted during any stage of the
proceeding i.e. even before the judgement in the suit is delivered.

Rule 2: Restraining a breach  

This rule deals with restrainment of an act already in action. Where a defendant has breached a
contract or caused harm (any kind) to the plaintiff, irrespective of the fact that compensation is
claimed in the suit, the plaintiff can file an application for a temporary injunction. Such an
application can be filed before or after the delivery of the judgement. The duration has to be
decided by the court.

Rule 2A: Punishment for breaching the injunction

By disobeying the order or breaching any of the terms (in relation to rule 1 and rule 2) of the
injunction, a person can land in civil jail for 3 months (maximum). The property of such a person
can also be ordered to be attached to the suit for a maximum period of 1 year and if the breach
continues, then the court is entitled to sell the property and pay the aggrieved party compensation
out of the sale return.

Rule 3: Notice to the opposite party

The court is bound to send a notice to the opposite party regarding the filing of an application of
injunction against it. The court is not bound when the delay caused in sending such a notice
would defeat the purpose behind granting the injunction. Provided in such a case i.e. where no
notice is sent, the Court shall record reasons behind taking such an action. The applicant also
needs to deliver the copy of the application, affidavit, plaint and the documents after such order
has been made. An affidavit has to be filed stating that the copies have been delivered to the
opposite party on the day of the passing of the injunction order itself or a day after.
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Rule 3A: Time period prescribed to dispose of the

application  
Where the notice hasn’t been delivered to the opposite party the court should try to dispose of the
application within 30 days and where it isn’t able to do so, it should record the reasons behind
such inability.

Rule 4
If a party files an application expressing its dissatisfaction with the injunction order, the order can
be set aside, modified or discharged on a perusal of the application. Where a false or misleading
claim was made in the application that resulted in the grant of the injunction and it was granted
without a notice being sent to the other party, the injunction order is to vacate unless it would
harm the interest of justice. The reasons have to be recorded for not vacating the injunction order
in such a scenario. Where the other party has been given a chance to be heard, unless there are
some changes in the circumstances or unnecessary hardship has been caused to the other party,
the injunction order shall not be discharged, modified or set aside.  

Rule 5: Injunction against a corporation

Where an injunction order has been imposed against a corporation, it is not only binding on the
corporation but also on all the members and officers of the corporation.

Further, Rules 6-10 discuss various provisions related to interlocutory orders.

Principles to be followed as per the judgements

Granting of a temporary injunction is a discretionary power in the hands of the court. However,
the court has come up with some guidelines in some past cases to help it decide whether in a case
the injunction should be provided or not. In Nawab Mir Barkat Ali vs. Nawab Zulfiqar, certain
principles were laid to be observed while granting the temporary injunction. These principles
include:

 That the applicant has a prima facie case: A prima facie case is one where if the
evidence that has led to the suit were believed, it would render the outcome as the only
outcome in the case and it is not necessarily a case that can’t be proved otherwise.   
 The balance of convenience: There should be a balance between the convenience
caused to the applicant and the inconvenience caused to the defendant if the injunction
is granted. While comparing the balance, if in the scenario of not granting the
injunction, the inconvenience caused to the plaintiff turns out to be more only then
will an injunction be considered. So the balance of convenience should be in favour of
the applicant.
 Irreparable loss or injury to be caused if the injunction is not granted: An irreparable
injury if caused, would imply that no amount of monetary compensation can restore
the party to its position before the suit was filed. A temporary injunction is used as a
preventive measure against an irreparable loss. 
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 Where a permanent injunction can’t be granted based on the merits of the case, a
temporary injunction shouldn’t be granted too.  

Necessary contents in the application for a temporary injunction

 The Court’s place of sitting or jurisdiction and the name of the judge.
 Civil suit number and the year in the prescribed manner. 
 The names of the parties to the suit should be properly mentioned as plaintiffs and
defendants.
 A clear mention of the provision under which the suit has been filed.
 A clear mention of the purpose or the cause that has led to the filing of the suit.
 A proper description of the disputed property i.e. mapping the ancestry of the property
etc.
 The chain of events that led to the filing of the suit.
 The facts or the reasons that bring out a prima facie case pertaining to grant of an
injunction.
 Why the ‘balance of convenience’ is in your favour. Balance of convenience means
comparative mischief for the inconvenience to the parties. The inconvenience to the
petitioner, if temporary Injunction is refused, would be balanced and compared with
that of the opposite party, if it is granted.
 Mention an irreparable injury that would be caused if the injunction isn’t allowed.
 A brief prayer mentioning the course of action the plaintiff desires or is prescribed in
the procedural code.
 A Schedule containing all the required documents to substantiate the facts mentioned
in the application.
 An affidavit duly signed by the plaintiff.

Common mistakes while drafting

 Negligence in mentioning the names of the parties and the court.
 Wrong usage of words, punctuations and faulty grammar. 
 Not substantiating the facts with enough documents or proofs.
 Using legalese instead of simple English.
 Not clearly establishing or fulfilling the three basic principles(prima facie case, the
balance of inconvenience and irreparable damage) through proper reasoning.
 Usage of unclear language in prayer.
 Faulty drafting of the affidavit.
 Improper attachment of the schedule.   
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Tips to draft a good application

Make sure that you don’t commit any of the common mistakes. Drafting a good application with
correct English grammar and judicious usage of the terms always leaves a good impression on the
judge. The claims as mentioned in the application should be well substantiated with facts and
documents. Always make sure of using simple terms or avoid using legalese and flowery
language. Familiarity with the legal elements is like having in possession a map of an unexplored
island. The language of your affidavit should be sharply directed towards the other party. If it has
been put forward by the plaintiff then it should be exhaustive and attack the defendant. On the
other hand, if you are the defending party then make sure you answer to each and every point
made out in the plaintiff’s affidavit and counter it with well-substantiated facts.

Sample Application
Here is a specimen depicting how an application structure should be framed based on the facts of
the case:

IN THE COURT OF(place eg Dwarka District Court) THE CIVIL JUDGE(Name of the judge)

Civil Suit No.    /20____

…Plaintiff

Vs.

…Defendants

An application for an interim injunction under Order XXXIX Rule 1 and 2 of the Civil Procedure
Code

1. The Plaintiff has filed the suit for (mention the purpose for eg recovery of possession
of the disputed property).
2. That the disputed property (Proper description of the suit property with facts
ascertaining unquestionable legal authority of the plaintiff) has been unlawfully kept
out of the possession of the plaintiff (or any other reason as per the case).
3. Start with the chain of events that has led to the filing of the present suit. (This should
be divided into subsequent sub paras to enable a clear understanding of the events).
4. Mention the fact that the chain of events establish a prima facie case and further
investigation or action is needed.
5. A reason that clearly states the balance of favour in plaintiff’s side eg. The disputed
property is the only means of income that the plaintiff’s family earns income from and
dispossession would lead to unparallel hardships.
6. Irreparable damage will be caused which wouldn’t be compensated in monetary terms.
(The reason might include mental trauma and emotional hurt).
7. PRAYER: The plaintiff, therefore, prays that your Honour finds it fit to deliver a
show-cause notice to the opposite party putting forward the reasons why the
injunction shouldn’t be granted. Pending hearing of such injunction petition, it is
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prayed that an interim injunction order is passed to restrain the defendants from
causing any harm to the disputed property.
PLAINTIFF(Signature):

PLACE:

DATE:

ADVOCATE FOR PLAINTIFF:                                                                   

SCHEDULE

Attach a Schedule including all the documents containing the documents related to the property
and to substantiate other facts mentioned in the application.

AFFIDAVIT

An affidavit is an oath of truthfulness for the facts that have been mentioned in the plaint in a
written form. No penal action arises in case of non-inclusion of a fact that wasn’t a part of the
plaintiff’s knowledge.    

Conclusion
To draft a good application for grant of a temporary injunction, one needs to have a clear
understanding of the concept and the grounds that are considered while granting it. A good
application is one that has strongly established the three basic grounds i.e. a prima facie, the
balance of convenience and that irreparable damage would be caused through the application can
one successfully get a decree passed in his favour. The common mistakes should be avoided and
the tips should be kept in mind while drafting the application.

References
 https://lawhelpbd.com/draftinghttps://lawsisthttps://lawsisto.com/readdeedsdrafts/
Mzg4/APPLICATION-FOR-INTERIM-INJUNCTIONo.com/readdeedsdrafts/Mzg4/
APPLICATION-FOR-INTERIM-INJUNCTION/injunction-plaint-sample/

 https://lawsisto.com/readdeedsdrafts/Mzg4/APPLICATION-FOR-INTERIM-
INJUNCTION

 http://www.legalserviceindia.com/legal/article-2444-temporary-injunction-o-39.html

 https://www.mondaq.com/india/civil-law/257586/law-of-injunction-temporary-
injunction

 https://www.thebalancecareers.com/seven-ways-to-improve-your-legal-writing-skills-
2164712#:~:text=Examples%20of%20legalese%20include%20words,words%20with
%20simple%2C%20concrete%20terms
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BIBLIOGRAPHY

BOOKS:
1. Chandrashekharan Pillai, K.N., R.V. Kelkar’s Criminal
Procedure, 6th Ed. Reprint 2020, Eastern Book Company

STATUTES:
1. Code of Criminal Procedure,1973
2. Indian Penal Code, 1860

WEBLIOGRAPHY:
1. https://www.legalbites.in/crpc-notes-provisions-appeal-
under-criminal-procedure/#_ftn6
2. https://blog.ipleaders.in/appeal-reference-and-revision-
under-crpc/
3. https://indiankanoon.org/doc/127405/
4. https://www.scconline.com/post/2018/01/18/appellate-
court-not-reverse-judgment-acquittal-merely-two-
views-possible/?amp