Writ, Stay Order, Injunction and Adjournment

Article 32(4): the right guaranteed by this article shall not be suspended except as otherwise provided for by the Constitution.

Notice what article 32 is. It is itself a fundamental right, sitting inside Part III, and the remedy is available only for the enforcement of a Part III right. That is its limit and it is examinable.

Article 226

Article 226(1): notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

Article 226(2) extends the power to a High Court within whose territories the cause of action wholly or in part arises, even if the authority is outside them.

"And for any other purpose" is the difference. The High Court's writ jurisdiction is wider than the Supreme Court's under article 32: it covers not merely fundamental rights but legal rights generally. A person whose statutory right has been infringed by a public authority can move the High Court under article 226 and cannot move the Supreme Court under article 32.

The five writs

Habeas corpus, "you may have the body". Issued to a person detaining another, requiring them to produce the detained person before the court and justify the detention. If the detention is unlawful the court orders release. It is the writ that protects personal liberty, and it lies against a private person as well as against the State. It is the writ behind the whole subject matter of [D.K. Basu v. State of West Bengal].

Mandamus, "we command". Issued to a public authority, or to an inferior court or tribunal, commanding it to perform a public duty it has refused or failed to perform. It does not lie to compel a private person to perform a private contract, and it does not lie to compel a discretionary act to be done in a particular way, though it does lie to compel the discretion to be exercised at all.

Prohibition, issued by a superior court to an inferior court or tribunal forbidding it to continue proceedings in excess of its jurisdiction. It is preventive and it operates while the proceeding is still pending.

Certiorari, "to be certified". Issued by a superior court to an inferior court or tribunal to quash an order already made, on the ground of want or excess of jurisdiction, violation of natural justice, or an error of law apparent on the face of the record. It is curative and it operates after the decision.

Quo warranto, "by what authority". Issued against a person holding a public office, requiring them to show by what authority they hold it. If the answer is that they were never validly appointed, the court ousts them. The office must be a public office of a substantive character created by statute or by the Constitution.

Prohibition and certiorari go together and the difference is one line: prohibition stops a proceeding before the order, certiorari quashes it after.

Stay order

What it is

A stay order is an order suspending, for the time being, a proceeding or the operation of a decision.

There is no single section headed "stay order", which is exactly why students find it slippery. What exist are several powers scattered through the codes, and a stay is the exercise of one of them.

Where the power comes from

Section 10 of the Code of Civil Procedure 1908 requires a court not to proceed with the trial of a suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. That is a stay of the later suit.

Order XLI rule 5 provides that an appeal shall not of itself operate as a stay of proceedings under the decree appealed from, nor as a stay of execution, but that the appellate court may for sufficient cause order a stay of execution.

The first half of that rule is the part that is asked. Filing an appeal does not by itself stop the decree from being executed. The appellant must apply for and obtain a stay. Students very often assume the opposite.

Section 151, the court's inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court, is the residual source where no specific provision fits.

In writ proceedings, a High Court under article 226 or the Supreme Court under article 32 can and constantly does stay the operation of the order under challenge while the petition is heard.

Injunction

What it is

An injunction is a specific order of a court directing a person to do a particular act, or to refrain from doing one.

Section 36 of the Specific Relief Act 1963: preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.

Temporary and perpetual

Section 37(1): temporary injunctions are such as are to continue until a specified time, or until the further order of the court; they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure 1908.

Section 37(2): a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

So the difference is when it is granted and how long it lasts. A temporary injunction is interlocutory, granted on an application during the suit, and lasts until a date or until further order. A perpetual injunction is part of the final decree, granted after the case has been decided on the merits, and lasts indefinitely.

Section 38 sets out when a perpetual injunction may be granted: to prevent the breach of an obligation existing in favour of the plaintiff, expressly or by implication; and, where the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, in the cases the section lists.

Prohibitory and mandatory

A prohibitory injunction tells the defendant not to do something: not to build, not to publish, not to transfer.

A mandatory injunction tells the defendant to do something, usually to undo what has already been done: to pull down the wall. Section 39 governs it, and it is granted more sparingly, because compelling positive action is a heavier interference than restraining it.

The Code's side of it

Order XXXIX rule 1 lists the cases in which a temporary injunction may be granted, where it is proved by affidavit or otherwise that property in dispute is in danger of being wasted, damaged or alienated by a party or wrongfully sold in execution; that the defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors; or that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to property in dispute.

Order XXXIX rule 2 allows an injunction to restrain a breach of contract or other injury. Rule 2A provides the consequence of disobedience: attachment of property and detention in civil prison.

Beyond the words of the rules, a court granting a temporary injunction applies three settled requirements, and an answer should name all three: a prima facie case, meaning a serious question to be tried; the balance of convenience lying in favour of the applicant; and irreparable injury that could not be compensated in money.

When an injunction cannot be granted

Section 41 of the Specific Relief Act lists the cases in which an injunction cannot be granted. They include restraining a person from prosecuting a pending judicial proceeding, unless to prevent multiplicity of proceedings; restraining a person from instituting or prosecuting a proceeding in a court not subordinate to that from which the injunction is sought; restraining a person from applying to a legislative body; restraining proceedings in a criminal matter; preventing the breach of a contract the performance of which would not be specifically enforced; preventing a continuing breach in which the plaintiff has acquiesced; and where equally efficacious relief can certainly be obtained by any other usual mode of proceeding.

Adjournment

What it is

An adjournment is the postponement of a hearing to a later date.

The civil rule

Order XVII rule 1(1): the court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing. There is a proviso, inserted by the amendment of 1999 and brought into force in 2002: no such adjournment shall be granted more than three times to a party during the hearing of the suit.

Rule 1(2) requires the court, in every such case, to fix a day for the further hearing and to make such orders as to the costs occasioned by the adjournment, or such higher costs as the court deems fit. A proviso requires that once the hearing has commenced it shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds, for exceptional reasons recorded, that an adjournment is necessary.

Two things there are asked directly: sufficient cause, reasons in writing, and a cap of three adjournments per party; and costs, because the point of costs is that delay should be paid for by the party who causes it.

The criminal rule

Section 346(1) of the Bharatiya Nagarik Suraksha Sanhita 2023 states the same principle for a criminal case: in every inquiry or trial the proceedings shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment beyond the following day to be necessary for reasons to be recorded. For the sexual offences it lists, the inquiry or trial must be completed within two months from the date of filing of the chargesheet.

A worked example

A builder starts putting up a compound wall that will block the only access to Rehana's shop in Mumbai. She sues for a declaration and a mandatory injunction.

Before the suit is decided she needs the building stopped. She applies under Order XXXIX rules 1 and 2 for a temporary injunction, supported by an affidavit. The court asks the three questions: is there a prima facie case, that is, a serious question to be tried about her right of access; where does the balance of convenience lie, weighing the builder's loss from stopping against her loss from being walled in; and would damages be an adequate remedy, or is the injury irreparable. If she succeeds the injunction runs until further order under section 37(1).

At the end of the suit, if she wins, the decree can carry a perpetual injunction under section 37(2) restraining the builder permanently, and a mandatory injunction under section 39 requiring the wall already built to be pulled down.

Suppose instead the builder is a municipal corporation acting under a statutory power, and Rehana says the sanction was granted without hearing her. Now she is complaining of a public authority's breach of a legal duty, so the remedy is a writ petition under article 226, in which she may seek certiorari to quash the sanction and mandamus to compel the corporation to decide afresh after hearing her, and she will ask for a stay of the sanction while the petition is pending.

And if the corporation, having lost, appeals, Rehana should note that under Order XLI rule 5 the appeal does not by itself stay the decree in her favour, and the corporation must apply for a stay.

Meanwhile the builder's advocate seeks time on three successive dates. Order XVII rule 1 lets the court grant time only on sufficient cause, for reasons recorded, not more than three times to that party, and with costs.

Distinctions table

What these words do NOT mean

A stay is not an injunction. A stay operates on a proceeding or on the effect of an order; an injunction operates on a person and tells them what to do or not to do. Breach of an injunction is punishable under Order XXXIX rule 2A.

Filing an appeal does not stay the decree. Order XLI rule 5 says so in terms. A stay must be applied for and obtained.

Article 32 is not as wide as article 226. Article 32 is available only to enforce a fundamental right; article 226 is available for that "and for any other purpose".

A writ does not lie against a purely private body in the ordinary case. Whether the respondent is "the State" or a public authority is the threshold question, and it takes you back to [Fact, Person, Offence and State].

An adjournment is not a right. It requires sufficient cause and reasons in writing, it is capped at three per party under the proviso to Order XVII rule 1, and it carries costs.

Limits and criticism

The three-adjournment cap is widely ignored in practice, and that gap between the rule and the reality is the standard criticism of Order XVII rule 1. The provision is mandatory in form; the enforcement is not.

The writ jurisdiction is discretionary. Even where a right has been infringed, a court may decline relief because of delay, because an alternative remedy exists, or because the petitioner has suppressed material facts. A student who writes that a writ "must" issue once a violation is shown has overstated it.

Injunctions are equally discretionary, and section 41 lists a long series of cases in which one cannot be granted at all, so the existence of a right does not guarantee this particular remedy.

Quick revision

Writ: articles 32 and 226. Five writs, all "in the nature of": habeas corpus, produce the detained person; mandamus, command performance of a public duty; prohibition, forbid an inferior court from proceeding; certiorari, quash its order; quo warranto, question the holding of a public office. Article 32 is itself a fundamental right and is confined to Part III. Article 226 adds "and for any other purpose" and so is wider. Article 227 is superintendence, not a writ.

Stay order: no single provision. CPC s.10, Order XLI r.5 (an appeal is not of itself a stay), s.151, and the writ courts' power. Suspends a proceeding or the operation of an order.

Injunction: Specific Relief Act 1963, s.36 discretion, s.37 temporary and perpetual, s.38 when perpetual is granted, s.39 mandatory, s.41 when it cannot be granted. CPC Order XXXIX rr.1, 2 and 2A. Three requirements: prima facie case, balance of convenience, irreparable injury.

Adjournment: CPC Order XVII r.1, sufficient cause, reasons in writing, not more than three times to a party, costs; day-to-day hearing once commenced. BNSS s.346 for criminal trials.

Test yourself

1. Name the five writs and give the function of each in one line.

Habeas corpus, requiring a detained person to be produced and the detention justified, failing which release follows. Mandamus, commanding a public authority or inferior tribunal to perform a public duty it has failed to perform. Prohibition, forbidding an inferior court or tribunal to continue a proceeding in excess of its jurisdiction. Certiorari, quashing an order already made by an inferior court or tribunal for want or excess of jurisdiction, breach of natural justice, or error of law apparent on the record. Quo warranto, requiring a person holding a public office to show by what authority he holds it.

2. How does article 226 differ from article 32?

Article 32 is itself a fundamental right and is confined to the enforcement of the rights in Part III, and it is exercisable by the Supreme Court. Article 226 is exercisable by every High Court within its territories, and it extends to the enforcement of Part III rights "and for any other purpose", so it covers ordinary legal and statutory rights as well. Article 226(2) further allows a High Court to act where the cause of action arises wholly or in part within its territories even though the authority is outside them.

3. Distinguish prohibition from certiorari.

Both are issued by a superior court to an inferior court or tribunal, and the difference is one of timing and effect. Prohibition is preventive: it is issued while the proceeding is still pending and forbids the inferior body from continuing beyond its jurisdiction. Certiorari is curative: it is issued after an order has been made and quashes it, on the ground of want or excess of jurisdiction, violation of natural justice, or an error of law apparent on the face of the record.

4. Distinguish a temporary from a perpetual injunction.

Under section 37(1) of the Specific Relief Act 1963, a temporary injunction continues until a specified time or until the further order of the court, may be granted at any stage of a suit, and is regulated by the Code of Civil Procedure 1908, in particular Order XXXIX. Under section 37(2), a perpetual injunction can be granted only by the decree made at the hearing and upon the merits of the suit, and it perpetually restrains the defendant from asserting a right or committing an act contrary to the plaintiff's rights.

5. Does filing an appeal automatically stay execution of the decree?

No. Order XLI rule 5 of the Code of Civil Procedure 1908 provides that an appeal shall not of itself operate as a stay of proceedings under the decree appealed from, nor as a stay of execution; the appellate court may order a stay for sufficient cause, on an application. Until such an order is made the decree-holder may proceed to execute.

6. What must a plaintiff show to obtain a temporary injunction, and what does the court also consider?

Beyond bringing the case within Order XXXIX rules 1 or 2, the plaintiff must show a prima facie case, that is, a serious question to be tried, not a case certain to succeed; that the balance of convenience lies in favour of granting the injunction, weighing the harm to each side; and that refusal would cause irreparable injury, meaning injury that could not adequately be compensated in money. The court also remembers that under section 36 of the Specific Relief Act 1963 preventive relief is granted at its discretion, and that section 41 lists cases in which an injunction cannot be granted at all.