Chamber Notes
The Injunction Granted Unheard: What the Proviso Puts in Place of Notice
10 September 2026 · 14 min read
An application for a temporary injunction is ordinarily thought of as having two possible outcomes on the first date: notice, or an ex parte order. The Code does not present them as alternatives of equal standing. Order XXXIX Rule 3 opens with a command in favour of notice — the Court "shall in all cases" direct notice of the application to be given to the opposite party — and reaches the ex parte order only through an exception written into the same sentence. Everything that follows in the proviso is the price of taking that exception.
Read that way, the proviso stops looking like a compliance formality attached to relief already granted. It is the machinery by which the Code restores, within roughly twenty-four hours and at the applicant's expense, the position the main rule would have produced at the outset.
The exception is narrower than urgency
The main body of Rule 3 excepts the case "where it appears that the object of granting the injunction would be defeated by the delay". That is a single causal proposition, and it is not a synonym for urgency.
The proposition has two halves. The first is the object of the injunction — what, specifically, the order is meant to preserve. The second is that the object would be defeated, not merely made harder or more expensive to secure, by the delay that notice would involve. An application which says that the matter is urgent, that irreparable loss will follow, or that the balance of convenience favours the plaintiff has addressed the merits of the injunction. It has not addressed the different question of whether the defendant may be heard first.
The distinction matters in drafting because the Court has to record its own opinion on that question, and it can only form an opinion on material the applicant has placed before it. A prayer for ex parte relief that recites urgency at large leaves the Court either to construct the reasoning itself or to omit it.
Three duties, only one of them the Court's
The proviso distributes obligations between two people. The Court, where it proposes to grant an injunction without notice, "shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay". The applicant is then required to do two things. Under clause (a), he must deliver to the opposite party, or send by registered post, immediately after the order granting the injunction has been made, a copy of the application together with a copy of the affidavit filed in support, a copy of the plaint, and copies of the documents on which he relies. Under clause (b), he must file, on the day the injunction is granted or on the day immediately following, an affidavit stating that those copies have been delivered or sent.
The division of labour is exact. The Court's duty is to justify departing from notice. The applicant's duty is to supply the notice the Court did not give. The proviso does not merely attach a penalty to the ex parte order; it undoes as much of the ex parte character of the order as can be undone after the event, and it puts the cost of doing so on the party who asked to be heard alone.
Two features of clause (a) repay attention.
The first is what is on the list: the application, the affidavit, the plaint, and the documents relied on. The sub-clauses do not name the order. What the defendant is entitled to receive within a day is the case, not the result — the same papers he would have received had notice been directed. That is what makes the proviso a substitute for notice rather than an intimation of defeat.
The second is the standard of the obligation. Clause (a) is satisfied by delivery or dispatch by registered post, and clause (b) asks for an affidavit that the copies "have been so delivered or sent". Neither asks for proof of receipt. That is a deliberate allocation: the applicant controls what leaves his hand and cannot control what arrives at the defendant's, so the Code asks of him only what he is in a position to guarantee. It also means the affidavit cannot be deferred — dispatch has to have happened before it can be sworn to, and the swearing is due the same day or the next.
Who the reasons are written for
The reason-recording requirement is often treated as something owed to the appellate record. In Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161, a Bench of three Judges located it somewhere else. The requirement, the Court said, "is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed."
The reasons, on that account, are addressed to the person who was not there. That sits a little awkwardly with clause (a), which does not require the order itself to be sent: the defendant receives the case within a day, but must come to the record for the explanation. What the passage settles is the character of the requirement. The reasons are not a formality owed upwards to an appellate court. They are an account owed sideways, to the party who was displaced.
The judgment also dealt with the objection that most often keeps reasons off the order sheet: that stating reasons for an ex parte injunction invites the complaint that the Court has prejudged the suit. The Court called this "a misconception about the nature and the scope of interim orders", pointing out that an opinion expressed on an interlocutory application has no bearing at the stage of final adjudication, and that in any event, "[w]hen the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant."
On whether the requirement is imperative, the Court's reasoning was structural rather than exhortatory. It noted that other statutes contain similar requirements to record reasons, in respect of some of which non-compliance has been held not to vitiate the order, and held that the same could not be said of this proviso: if compliance were "optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose". The proviso, it held, attracts the principle that where a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all.
One general observation in that judgment is worth separating from the directions that followed it, which were framed for the particular class of suits before the Court: an ex parte order "should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned". The order without notice is understood as an order with a fixed and short life.
Rule 3A: the second occasion for reasons
Rule 3A, inserted by the same 1976 amendment that added the proviso, places a further obligation on the Court alone. Where an injunction has been granted without notice, the Court "shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability".
The language is weaker than the proviso's — an endeavour, not a decision — but the architecture is identical. A departure is permitted; it is simply not permitted silently. Order XXXIX therefore requires a court to write twice about the same order: once to explain why it acted without hearing the other side, and once to explain why it has not yet stopped.
Rule 3A also answers the obvious objection to Rule 3. An order made without notice is tolerable only if it is short. Rule 3A supplies the shortness that Rule 3 assumes — though not, as the Supreme Court has clarified, by capping the order itself. In A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695, the Court held that the Rule "does not say that the period of the injunction order should be restricted by the Court to thirty days at the first instance, but the Court should pass final order on it within thirty days", so that an ex parte order "does not ipso facto become illegal merely because it was not restricted to a period of thirty days or less". The thirty days govern the decision, not the duration.
Where the sanction sits
The consequences of non-compliance are not distributed as one might expect, and the reason lies in Order XLIII. Rule 1(r) makes appealable an order under Rules 1, 2, 2A, 4 or 10 of Order XXXIX. Rules 3 and 3A are not on that list.
That gap is narrower than it first appears, but it is real. The ex parte injunction itself is appealable: Venkatasubbiah Naidu held that Rule 1 is "the repository of the power to grant orders of temporary injunction with or without notice", so an order made in exercise of that power falls within Order XLIII Rule 1(r), and the affected party may either appeal or apply to the court which passed it. What Order XLIII cannot reach is inaction. A court that grants an ex parte injunction and then does nothing produces no further order to appeal from, and the same judgment records that in the normal course the aggrieved party "cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction". The party left in that position is, by definition, the one who has still not been heard.
The judgment addressed that consequence directly. Describing Rule 3A as casting a "three-pronged protection" on the party against whom the ex parte order was passed, the Court reasoned that where those protections are bypassed, "it is difficult to hold that the party affected by the order should necessarily be the sole sufferer", since no party can be made to suffer for the inaction of the court. It therefore held that where the mandate of Rule 3A is flouted, the aggrieved party is entitled to a right of appeal notwithstanding the pendency of the injunction application — and, to make that appeal competent, that failure to decide the application or vacate the injunction "shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule".
The sanction, in other words, is not invalidity. It is the early opening of a door the Code otherwise keeps shut until the application is decided — accomplished by deeming the court's silence to be the order it failed to pass.
The applicant's default is a different default
The same judgment declined to treat the Court's omission as fatal to the order itself: where the court granting an ex parte injunction did not record reasons or did not require the applicant to perform the duties in clauses (a) and (b), the order "can be deemed to contain such requirements at least by implication even if they are not stated in so many words". The duties survive the order's silence about them.
The two propositions answer different questions. Shiv Kumar Chadha decided that the Court must record reasons. Venkatasubbiah Naidu decided what becomes of the order if it does not, and declined to put the consequence on the validity of the order — locating it instead in what the applicant may afterwards do with it.
What does not survive is non-performance by the applicant. On that, Venkatasubbiah Naidu was blunt: a party in whose favour an ex parte order was made and who fails in the duties the proviso casts on him "must take the risk", and cannot take advantage of the order if it is disobeyed — "[a] disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party."
More recently, in Time City Infrastructure and Housing Ltd v. State of U.P., 2025 INSC 966, the Supreme Court declined to interfere with an order of the Allahabad High Court which had, in exercise of its supervisory jurisdiction under Article 227, set aside an ex parte injunction granted by a trial court. Reading Rule 3 as conferring a privilege accompanied by an obligation on the court to record reasons and an obligation on the applicant to comply with clauses (a) and (b), and treating both as mandatory, the Court explained the consequence of the applicant's default in terms that go to the foundation of the order: the court which granted the injunction did so "confiding in the applicant that having been shown indulgence by the court he would comply with the requirements of the proviso", and on being satisfied of non-compliance "it would simply vacate the ex parte order of injunction without expressing any opinion of the merits of the case", leaving the parties to a bipartite hearing. The applicant, the Court said, "would be told that by his conduct he has deprived the opponent of an opportunity of having an early or urgent hearing on merits and, therefore, the ex parte order of injunction cannot be allowed to operate any more."
That reasoning follows from the structure rather than adding to it. If the clause (a) papers are the substitute for the hearing, then failing to send them does not merely breach a direction — it removes the thing that made the order defensible.
The fourth occasion for reasons
There is one further place where the Code singles out an order made without notice. The first proviso to Rule 4 provides that where a party has knowingly made a false or misleading statement in relation to a material particular in the application or the supporting affidavit, and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary to do so in the interests of justice.
The conjunction is doing the work. The same falsehood in a contested application does not attract a mandatory vacation; it is weighed like any other material irregularity. It becomes mandatory only where the falsehood was told to a court that had no one in front of it to contradict it. Rule 4 is not punishing untruth in the abstract. It is protecting the specific condition — the absence of the other side — that made the untruth effective.
And once again, escape from the mandatory consequence is available only on recorded reasons. Across Rules 3, 3A and 4, an order made without notice generates three separate occasions on which a court must put its reasoning on paper, and one on which the applicant must put his compliance on affidavit.
What follows for the file
Two practical points fall directly out of the text.
The first is that the postal step cannot be organised after the order. The affidavit under clause (b) is due on the day of the order or the day after, and it can only be sworn once dispatch has occurred. The sets have to be assembled, and the opposite party's address has to be on the record in a usable form, before the application is moved — not after it succeeds. An injunction that survives the first hearing can still be lost on a registry receipt, and lost without the merits being reached at all.
The second concerns the paragraph asking for ex parte relief. Its function is not to repeat the case for the injunction; that has already been made in the application. Its function is to supply the material for an opinion the Court must record in its own words — that the object of the injunction would be defeated by the delay involved in notice. Which object; defeated how; by what act the defendant is in a position to complete in the interval. A paragraph that does not identify those three things has asked for the exception without giving the Court the means of granting it lawfully.
Order XXXIX's response to the absence of one party is not to lower what has to be shown. It is to require that the record carry, in writing and within a day, what that party's presence would have supplied.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.