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 compar