Stay Order in Pakistan: How Temporary Injunctions Work Under Order XXXIX CPC

When a dispute reaches court, the property or right in question can be sold, demolished, transferred or otherwise lost long before a final judgment. A stay order is how the court prevents that. In Pakistan the term is used loosely for several kinds of interim order, but in civil suits it usually means a temporary injunction under Order XXXIX of the Code of Civil Procedure, 1908 (CPC). This guide explains when the court can grant one, the tests it applies, how to apply, and what happens afterwards.

What "stay order" means in Pakistan

A stay order is an interim measure. It does not decide who is right. It keeps matters in place so that the final decision still means something. Depending on the case, the phrase can refer to:

• a temporary injunction in a civil suit, under Order XXXIX, Rules 1 and 2 CPC;
• a stay of a suit under Section 10 CPC, where the same matter is already directly and substantially in issue in an earlier suit;
• a stay of execution of a decree while an appeal is pending, under Order XLI, Rule 5 CPC;
• an interim order of the High Court in a constitutional petition under Article 199 of the Constitution.

The rest of this guide focuses on the first and most common kind.

Temporary injunctions under Order XXXIX CPC

Section 94 CPC allows a court, to prevent the ends of justice from being defeated, to grant a temporary injunction where it is so prescribed. Order XXXIX sets out the details.

Rule 1 covers cases where it is shown by affidavit or otherwise that property in dispute in a suit is in danger of being wasted, damaged or alienated by any party, or wrongfully sold in execution of a decree, or that the defendant threatens or intends to remove or dispose of property with a view to defrauding creditors. The court may restrain the act, or make another order to preserve the property, until the suit is disposed of or further orders are made.

Rule 2 applies to suits to restrain the defendant from committing a breach of contract or other injury. The plaintiff can ask, at any time after the suit is filed, for an order restraining the defendant from continuing the breach or injury complained of.

Typical examples include stopping the sale or transfer of a disputed plot, stopping demolition or construction, preventing dispossession, and restraining the use of a business name or confidential information. Temporary injunctions sit alongside the general law on injunctions in the Specific Relief Act, 1877, which also lists situations in which an injunction cannot be granted.

The three tests the court applies

Pakistani courts have applied the same three ingredients for decades. Normally, all three must be shown together.

• Prima facie case. The applicant must show a serious, arguable case on the documents and facts placed before the court. It does not have to prove the whole case at this stage.
• Balance of convenience. The court compares the harm each side would suffer if the order is granted or refused, and leans towards the course that causes less injustice.
• Irreparable loss. The applicant must show a loss that money cannot properly make good later, such as the sale of a unique property to a third party or the demolition of a building.

Injunctions are discretionary. An applicant who hides material facts, delays without explanation or comes to court with unclean hands can be refused even if the three tests appear to be met.

Ex parte (urgent) stay orders

Order XXXIX, Rule 3 CPC requires the court, before granting an injunction, to direct notice of the application to the opposite party. The exception is where the object of granting the injunction would be defeated by the delay, for example where a sale deed is about to be registered or a bulldozer is on site. In such cases the court may grant an ad interim order without hearing the other side, recording its reasons.

An ex parte order is temporary by nature. The other side is then served, files its reply, and the court hears both sides before confirming, modifying or vacating the order.

How to apply for a stay order

A temporary injunction is not a free-standing case. It is sought within a suit or proceeding. In practice the steps are:

1. Prepare the main case, usually a plaint seeking a declaration, permanent injunction, specific performance or other final relief, filed in the court with jurisdiction over the subject matter and value.
2. File an application under Order XXXIX, Rules 1 and 2 read with Section 151 CPC, supported by an affidavit that sets out the urgency and the three tests.
3. Attach supporting documents: title papers, lease or allotment letters, agreements, correspondence, photographs and any notices received.
4. Seek an urgent hearing if there is a real risk of immediate harm, and explain why notice would defeat the purpose.
5. Serve the other side and be ready to answer its reply on the date fixed.

Be accurate in the affidavit. A misleading statement can lead to the order being vacated and can damage the main case. For property matters, our guide on verifying property in Karachi before buying explains the records that are often relevant.

After the order: appeal, variation and breach

Variation or vacation. Under Order XXXIX, Rule 4 CPC, the court can discharge, vary or set aside an injunction on the application of a party dissatisfied with it.

Appeal. Orders under Order XXXIX, Rules 1, 2 and 4 are among the orders that can be appealed under Order XLIII, Rule 1(r) CPC.

Breach. An injunction must be obeyed until it is set aside. Under Order XXXIX, Rule 2(3) CPC, the court may order the property of a person who disobeys an injunction to be attached, and may order that person to be detained in civil prison for up to six months. Proceedings for contempt of court may also follow.

Other kinds of stay

Where a decree has already been passed, the question is usually a stay of execution. Filing an appeal does not by itself stop execution. The appellate court can stay it under Order XLI, Rule 5 CPC, and may require security.

Where the action is by a government department, a public body or an officer, relief is often sought from the High Court in its constitutional jurisdiction under Article 199, through an interim order pending the hearing of the petition. Service matters of civil servants in Sindh have their own forum, the Sindh Service Tribunal; see our page on Sindh Service Tribunal appeals.

The firm handles injunction applications as part of its litigation and dispute resolution work, including in property disputes and constitutional petitions. For an example of a property-related appeal decided by the High Court of Sindh, see Trustees of the Port of Karachi v. Muhammad Zahir Shah.

Disclaimer: This article is general information about the law in Pakistan as at the date shown. It is not legal advice and does not create a lawyer-client relationship. Laws, fees and procedures change; please take advice on your own facts before acting.