How Senior Advocates Draft an Order 39 Rule 1–2 Injunction Application | EduLaw
EduLaw EditorialAdvocate PlaybookA practical Indian litigation guide to drafting an application for temporary injunction under Order XXXIX Rules 1 and 2 CPC: prima facie case, balance of convenience, irreparable injury, urgency, evidence and prayer.
Advocate Playbook 090 · Blog Edition EduLaw Civil Litigation · Practical Drafting How Senior Advocates Draft an Order 39 Rule 1–2 Injunction Three tests. Five paragraphs. One precise order. Indian Civil Procedure Updated: August 2026 Practical advocate guide INJUNCTION The draft is not a summary of the plaint. It is a short case for why the court must preserve a specific position now , before the suit is finally decided. Inside this playbook 1. What the court is deciding 2. Rule 1 vs Rule 2 3. The 5-paragraph method 4. The three tests 5. Evidence mapping 6. Ex parte relief 7. Drafting the prayer 8. Model skeleton 9. Mistakes to avoid 10. FAQs A weak injunction application describes the dispute. A strong one tells the judge: what right is under immediate threat, what the defendant is about to do, what evidence proves the threat, why damages later will not be enough, and exactly what narrow restraint is required until the court can decide the suit. Start With the Order, Not the Story Before drafting a single paragraph, write the interim order you want the court to pass in one sentence. If that sentence is vague, the application will usually be vague too. Senior drafting habit Write the proposed restraint first. Then work backwards and include only those facts, documents and legal propositions that are necessary to justify that restraint. For example, “restrain the defendant from interfering with the plaintiff’s possession” may still be too broad unless the property, possession asserted, threatened act and period of restraint are identifiable. The more exact the threatened act, the easier it becomes to show urgency and irreparable injury. Know Why You Are Invoking Rule 1 or Rule 2 Order XXXIX of the Code of Civil Procedure, 1908 deals with temporary injunctions and interlocutory orders. Rule 1 identifies situations in which temporary injunction may be granted, including specified risks concerning property in dispute and threatened dispossession or injury. Rule 2 deals with restraint against repetition or continuance of a breach of contract or other injury. Drafting question What to show What is threatened? Sale, alienation, demolition, dispossession, interference, continued breach, publication, encroachment or another clearly described act. Which rule fits? Do not cite Rules 1 and 2 mechanically. Identify the factual gateway that makes the provision relevant. What must be preserved? The property, possession, contractual position, legal right or existing state of affairs that requires interim protection. Drafting distinction The statute gives the gateway . The three injunction tests justify the exercise of discretion . Your application should do both. The Five-Paragraph Injunction Method Most interim applications become unnecessarily long because the drafter copies the plaint. A more disciplined application can be organised around five jobs: Right: State the legal or possessory position that presently requires protection. Threat: Identify the defendant’s precise act, threatened act or continuing conduct. Proof: Attach or cross-reference the documents that make the threat immediately credible. Three tests: Deal separately with prima facie case, balance of convenience and irreparable injury. Relief: Ask for a narrow, workable order tied to the threatened conduct. This structure keeps the application judicially usable. The court should be able to understand the interim controversy without searching through twenty pages of narrative. Do Not Merely Name the Three Tests. Prove Them. 1. Prima facie case Show a serious, triable claim supported by material placed before the court. Do not argue as though final findings are already being sought. 2. Balance of convenience Compare the practical prejudice on both sides. Explain why preserving the applicant’s position creates less injustice than refusing protection. 3. Irreparable injury Explain why later damages or another ordinary remedy would not adequately repair the threatened harm. The Supreme Court has repeatedly treated these as cardinal considerations for temporary injunctive relief. Crucially, a prima facie case alone is not enough; the other elements must also be established. The exercise is discretionary and must be judicial, not automatic. Better drafting language Do not write: “The applicant has a prima facie case and will suffer irreparable loss.” Write: “The registered instrument dated ___, possession record dated ___ and notice dated ___ establish the applicant’s present claim. The threatened transfer would introduce third-party rights during pendency of the suit, complicating restoration of the subject matter and creating prejudice not adequately cured by damages.” Prima facie case is not the final trial Your job at the interim stage is to show enough material for the court to protect the claim pending adjudication. Avoid overclaiming. An application that seeks final findings at the interim stage often loses credibility. Balance of convenience must be comparative A senior draft asks two questions: what happens if the injunction is refused and the plaintiff ultimately succeeds; and what happens if the injunction is granted and the defendant ultimately succeeds? Put that comparison on paper. Do not leave it implicit. Irreparable injury must be fact-specific “Irreparable” does not mean physically impossible to repair. In injunction jurisprudence, the concern is whether the material injury can be adequately compensated or remedied later. That requires facts, not adjectives. Every Important Sentence Should Point to Proof In an interim application, evidence mapping matters more than decorative drafting. Build a short chronology and connect each material assertion to the document that supports it. Assertion Possible supporting material Why it matters Existing right or possession Registered deed, agreement, revenue record, possession memo, invoices, correspondence Supports the prima facie position Immediate threat Notice, message, advertisement, public notice, photographs, tender, email, third-party communication Shows urgency is real, not speculative Continuing interference Dated photographs, complaints, correspondence, site record, inspection material Shows recurrence or continuation Likely irreversible consequence Proposed sale, demolition, third-party creation, structural alteration, disclosure or dissipation material Supports irreparable injury The “because → therefore” test For each interim assertion, complete this sentence: “Because document/fact X shows Y, therefore interim protection Z is necessary.” If you cannot complete it, the paragraph may not belong in the application. Ex Parte Relief Requires a Separate Case for Urgency Notice is ordinarily the rule. If the applicant asks the court to grant an injunction without first giving notice to the opposite party, the draft must explain why the delay caused by notice would defeat the object of the injunction. Order XXXIX Rule 3 also imposes procedural requirements where the court proposes to proceed without notice, including reasons to be recorded and post-order compliance by the applicant. Do not confuse these two questions “Why should an injunction be granted?” and “Why should it be granted before notice?” are not the same question. Draft them under separate heads. If ex parte protection is obtained, counsel should also keep Rule 3A in view: where an injunction has been granted without notice, the Code contemplates an endeavour to finally dispose of the injunction application within thirty days, with reasons recorded if that is not possible. Ex parte relief is particularly vulnerable where the application conceals a material fact, suppresses prior proceedings, overstates urgency, or seeks an order wider than the immediate threat. Full and fair disclosure is therefore a practical drafting requirement, not merely a matter of style. The Prayer Should Be Capable of Becoming the Court’s Order A good prayer is not aspirational. It is executable. The judge should be able to adopt it with minimal rewriting. Identify the defendant or persons to be restrained. Identify the exact act to be restrained. Identify the property, document, transaction or subject matter precisely. Use an appropriate duration: pending disposal of the application, pending suit, or until further orders, depending on the relief sought. Avoid an interim prayer that effectively grants the entire final relief unless the legal and factual situation genuinely justifies it. Illustrative form — adapt to the facts “Pending hearing and final disposal of the present application, this Hon’ble Court may be pleased to restrain Defendant No. 1, its agents and persons claiming through it from creating any third-party rights in respect of [precise description of subject matter], in terms that the Court considers appropriate.” The words must fit the actual cause of action. A possession dispute, contractual breach, passing-off claim, construction dispute and property alienation case will require different drafting. A Practical Drafting Skeleton This is a structure, not a ready-to-file pleading. It should be adapted to the plaint, court rules, local amendments, facts, relief and evidence of the case. Paragraph 1 — The right The Applicant/Plaintiff has instituted the accompanying suit seeking [relief]. The Plaintiff’s present right/interest/possession arises from [instrument/fact], evidenced by [document]. Paragraph 2 — The threat On [date], the Defendant [precise act/threat]. The threat is immediate because [objective fact/document]. Unless restrained, [specific consequence] is likely to occur before adjudication. Paragraph 3 — Prima facie case The material presently on record, particularly [documents], discloses a substantial and bona fide issue requiring trial and supports preservation of the subject matter pending adjudication. Paragraph 4 — Balance + irreparable injury If protection is refused, [specific prejudice] may occur and cannot adequately be restored by damages alone because [reason]. By contrast, the proposed restraint only preserves [existing position] and imposes no comparable prejudice beyond preventing the disputed act. Paragraph 5 — Urgency + precise relief In view of [imminent event/date], immediate protection is necessary. The Applicant therefore seeks the narrowly framed restraint set out in the prayer below. If relief without notice is sought, add a separate factual basis explaining why delay would defeat the object. Seven Drafting Mistakes That Weaken Injunctions Copying the entire plaint. The interim application should isolate the temporary controversy. Using labels instead of reasoning. “Prima facie,” “balance” and “irreparable” are conclusions; show the facts behind them. Not identifying the threatened act. Courts restrain conduct, not abstract fear. Seeking a prayer wider than the right asserted. Overbroad prayers create resistance and may look inequitable. Ignoring delay or conduct. Explain any gap between knowledge of the threat and approach to court. Demanding ex parte relief without a Rule 3 case. Urgency must be independently demonstrated. Forgetting the final-relief relationship. The interim order should usually preserve the field for adjudication, not substitute for the final decree. The 60-Second Senior Advocate Audit Before filing, read only the application—not the plaint—and ask whether a judge can answer all of the following in under a minute: What exactly is the plaintiff trying to protect? What exactly is the defendant threatening to do? What document makes the threat credible? What is the prima facie basis of the plaintiff’s claim? Who suffers greater prejudice from grant or refusal? Why are damages or later relief inadequate? If ex parte relief is asked, why will notice defeat the object? Can the prayer be converted into a clear, enforceable order? The core idea An injunction application wins clarity before it wins law. The best draft makes the threatened injustice visible, the evidence easy to locate, the three tests separately provable, and the prayer narrow enough for a court to confidently grant. Frequently Asked Questions What are the three main tests for temporary injunction? Prima facie case, balance of convenience, and irreparable injury are the standard three considerations. They must be applied to the actual facts rather than reproduced as a formula. Is a prima facie case alone enough? No. Supreme Court authority makes clear that establishing a prima facie case by itself is not sufficient; the court also considers irreparable injury and balance of convenience. Can an injunction application repeat the plaint? It may rely on facts pleaded in the suit, but a practical interim application should isolate the facts and documents relevant to immediate protection. Repetition without prioritisation makes the application harder to use judicially. When can the court grant an injunction without prior notice? Where the court considers that delay would defeat the object of granting the injunction, subject to Order XXXIX Rule 3 CPC and its procedural safeguards. The request should contain a specific urgency case. What should the prayer clause contain? The person to be restrained, the precise act, the exact subject matter, and the period or stage for which restraint is sought. It should be capable of being enforced and should fit the underlying right asserted. Primary Legal References Code of Civil Procedure, 1908: Order XXXIX Rules 1, 2, 3 and 3A; Section 94. India Code text . Supreme Court: Dalpat Kumar v. Prahlad Singh , (1992) 1 SCC 719, principles reproduced and applied by the Supreme Court in later decisions, including a 2020 judgment concerning interim relief in a specific-performance suit. Supreme Court: Wander Ltd. v. Antox India P. Ltd. , 1990 Supp SCC 727, on the discretionary character of interim injunctions and appellate restraint. Specific Relief Act, 1963: Sections 36–42 contain the statutory framework concerning preventive relief and injunctions generally. The precise applicability depends on the nature of the suit and relief. Educational note: This playbook is for legal education and drafting training. It is not a substitute for the facts of a particular matter, applicable local amendments, court rules, binding precedent, or professional legal advice. Always verify the current statutory text and the law governing the forum before filing. EduLaw · India’s Legal Intelligence Platform EduLaw · All rights reserved.