Interlocutory applications and affidavits
Drafting, Pleading and Conveyance · Unit II · Topic 7 of 19 · 6 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. The usual interlocutory applications
- Temporary injunction: Order XXXIX Rules 1 and 2.
- Attachment before judgment: Order XXXVIII Rule 5, where the defendant is about to dispose of or remove his property to obstruct execution.
- Appointment of a receiver: Order XL Rule 1.
- Appointment of a commissioner for local investigation or to record evidence: Order XXVI.
- Amendment of pleadings: Order VI Rule 17.
- Impleading a party: Order I Rule 10.
- Setting aside an ex parte decree: Order IX Rule 13.
- Condonation of delay: section 5 of the Limitation Act, 1963.
- Residual applications: section 151 CPC (inherent powers), where no specific provision applies.
Always cite the specific provision in the title. Section 151 is added only where the order sought is not squarely covered.
2. Temporary injunction: the law the application must meet
Order XXXIX Rule 1 allows a temporary injunction where it is proved by affidavit or otherwise that property in dispute is in danger of being wasted, damaged or alienated, or wrongfully sold in execution; that the defendant threatens or intends to remove or dispose of property to defraud creditors; or that the defendant threatens to dispossess the plaintiff or otherwise cause injury to him in relation to the property. Rule 2 covers injunctions to restrain breach of contract or other injury.
In Dalpat Kumar v. Prahlad Singh, 1991 INSC 341, (1992) 1 SCC 719, the Supreme Court restated the three conditions the applicant must satisfy:
- A prima facie case: a bona fide dispute raising a serious question to be tried, with a probability of success.
- Irreparable injury: injury that cannot be adequately compensated in money if the injunction is refused.
- Balance of convenience: greater hardship to the applicant from refusal than to the opponent from grant.
The application must plead facts on each. A drafter who writes “the plaintiff has a prima facie case and balance of convenience lies in his favour” without facts has pleaded a conclusion, not a case.
3. Ex parte injunction: Rule 3
The court must ordinarily give notice to the opposite party. It may grant an injunction without notice only if the object would be defeated by delay, and then it must record reasons and require the applicant to send the opponent, immediately after the order, copies of the application, the supporting affidavit, the plaint and the documents relied on, and to file an affidavit of having done so on the same or the next day. Rule 3A asks the court to dispose of the application within 30 days of an ex parte injunction. An application seeking ex parte relief should say, in a separate paragraph, why notice would defeat the purpose.
An order granting or refusing a temporary injunction is appealable under Order XLIII Rule 1(r).
4. Affidavits: Order XIX
- Rule 1: the court may order any fact to be proved by affidavit.
- Rule 2: it may order the deponent to attend for cross-examination.
- Rule 3: an affidavit is confined to facts the deponent can prove from his own knowledge, except on interlocutory applications, where statements of belief may be admitted if the grounds of belief are stated.
Form: the deponent’s full description; “I, …, do solemnly affirm and state as follows”; numbered paragraphs of fact; a verification stating which paragraphs are true to knowledge and which on information, with the source; signature of the deponent; identification by the advocate; attestation by an oath commissioner or notary. A false statement in an affidavit filed in court is false evidence, punishable under section 229 of the Bharatiya Nyaya Sanhita, 2023 (formerly section 193 IPC), and the court may proceed under section 379 of the BNSS (formerly section 340 CrPC).
5. Model: application for temporary injunction with affidavit
IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, BELAGAVI O.S. No. 88 of 2026
Smt. Savita R. Hiremath … Plaintiff v. Sri Prakash B. Naik … Defendant
I.A. No. 1 — APPLICATION UNDER ORDER XXXIX RULES 1 AND 2 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908
The plaintiff/applicant submits:
- The plaintiff has filed the suit for permanent injunction restraining the defendant from interfering with her possession of agricultural land in Sy. No. 142/2, measuring 2 acres, of Kakati village, Belagavi taluk (the Schedule Property).
- Prima facie case. The plaintiff purchased the Schedule Property by a registered sale deed dated 4 May 2019 and has been in possession since. Her name is entered in the RTC (record of rights) for 2019-20 to 2025-26, and she has raised a sugarcane crop which is now standing. Copies are produced.
- On 10 November 2026 the defendant, who owns the adjoining land, came with four persons and a JCB machine, began digging a channel across the Schedule Property, and threatened to take possession.
- Irreparable injury. If the defendant is not restrained, the standing crop will be destroyed and the plaintiff will be dispossessed, causing loss that cannot be measured in money.
- Balance of convenience. The defendant has no right, title or possession over the Schedule Property. An order preserving the plaintiff’s possession causes him no hardship.
- Urgency. The defendant has threatened to resume digging on 22 November 2026. If notice is ordered before an interim order, the object of the application will be defeated. The plaintiff undertakes to comply with Order XXXIX Rule 3.
Prayer. The applicant prays that the Court grant a temporary injunction restraining the defendant, his agents and anyone claiming under him from interfering with the plaintiff’s peaceful possession and enjoyment of the Schedule Property till the disposal of the suit, and pass an ex parte ad interim order in the same terms pending notice.
Place: Belagavi. Date: 18 November 2026. Sd/- Advocate for Plaintiff/Applicant.
AFFIDAVIT. I, Savita R. Hiremath, wife of Ramesh Hiremath, aged about 51 years, agriculturist, residing at Kakati, Belagavi taluk, solemnly affirm and state:
- I am the plaintiff in the suit and the applicant in this application, and I know the facts.
- The facts stated in paragraphs 1 to 6 of the application are true to my knowledge. I have not repeated them here for brevity, and I adopt them as part of this affidavit.
- The copies of the sale deed and RTC extracts produced are true copies of the originals.
Verification. I verify that paragraphs 1 to 3 of this affidavit are true to my knowledge. Verified at Belagavi on 18 November 2026. Sd/- Deponent. Identified by me, Sd/- Advocate. Sworn before me, Sd/- Notary.
How this is examined
An injunction application with affidavit is a standard exercise in the 15-exercise drafting set; attachment before judgment, amendment of plaint and condonation of delay are common alternatives. At the viva expect: the three tests and Dalpat Kumar; when an ex parte injunction may be granted and what Rule 3 then requires; the difference between Order XXXIX Rule 1 and Rule 2; and what Order XIX Rule 3 allows in an affidavit on an interlocutory application.