“Order of ‘status quo’ in lieu of temporary injunction how far legal and reasonable”

- Md. Mukhlasur Rahman

civil

Published On - June 11, 2015 [Vol. 2, Jan - Jun, 2015]

Meaning of ‘status quo’:

The expression status quo has been stated to mean, “the existing condition” or “the existing state of things as on any given date”. The axiom “status quo” has not been used in our Code of Civil Procedure or in any statutory law of our country. Whatsoever, the phrase has been used as well as being exercised in our judicial system for long period and now a days it has become our customary law too.

Our judiciary has catagorised this term in various ways; such as:-

Law is now settled that order of status quo is an order of injunction whereby the parties to the suit are restrained from doing the act which may bring change in the position of the parties or in the nature and character of the property in the subject-matter of the suit and as to possession of the parties in the property, 58 DLR (AD) 43, 53 DLR (AD) 70, 31 DLR 117, 3 BCR 344. Order of status quo by the court amounts to an order of temporary injunction. But status quo does not decide the question of possession, as such in the matter of this order question of possession is left open, 39 DLR 355, 5 MLR (AD) 272 = 5 BLC (AD) 165, 6 MLR (AD) 105, 4 MLR 354.

Principles for granting status quo:

It is pertinent to mention that the Code of Civil Procedure does not incorporate the term ‘status quo’ in anywhere. Nevertheless, this terminology has been being exercised and practiced in our judicial system for long. Some one of view that this term is being used as synonym of temporary injunction as envisaged in Order 39 rules 1 & 2 of the Code and some one of view that this is being used under court’s inherent power as given u/s. 151 of the Code. The principles for granting temporary injunction, i.e. prima facie case, irreparable loss and injury and balance of inconvenience, are also equally applicable in granting status quo, 4 MLR 354 para 6, 4 BLC 506.

If the applicant has prima facie case, the court shall pass temporary injunction; not order of status quo: The order of status quo is no doubt an injunction but such order encourages the party or the parties out of possession to use force to dispossess the party in possession, when the documents submitted by the plaintiff discloses prima facie case an order of temporary injunction should be passed to avoid further complication in view of present social condition and the tendency of litigant public to use force to come to possession under the garb of order of status quo, 52 DLR 102 = 20 BLD 66.

The court must not pass an order of status quo without ascertaining first the prima facie case of the application: The court below itself found that the plaintiffs have no prima facie case, i.e. prima facie title and possession in the case lands, but unfortunately allowed the application for temporary injunction by directing the parties to maintain status-quo which was illegal and as such the same cannot lie, 4 MLR 354 para 5. If the Munsif was prima facie satisfied about the plaintiff’s claim of possession in the suit land there was no reason for him not to make the ad-interim order absolute. But instead of doing so, he modified his earlier order to an order of status quo. Such an order without coming to a positive finding regarding the possession of the other party in the suit lands cannot be passed validly, 31 DLR 117, 2 BLD (AD) 154, 3 BCR 344.

Order of status quo respecting possession of suit lands should always be avoided:

Mentionable that though our statutes does not provide for any provision for passing orders as to that ‘both parties are directed to maintain status quo respecting possession of the suit lands’ but such types of orders have been exercised in our judicial system for long. However, we also notice that in recent times such orders are mostly used in the whole judicial system in the country. But in our observations we have to say that such orders are most vague, ambiguous and misleading to the societies and as such these types of orders should always, as we are struggling for, be avoided by a court of law.

The reasons for our struggle we may enumerate herein below –

  1. Vague and misleading order: We observe that in case of an order of status quo both parties have chance to claim that they are in possession of the case lands and the order is in their favour. In that case, the party out of possession may become more desperate in dispossessing the possessor party taking the chance of status quo order and thereby the person who has strong case of getting temporary injunction may suffer.
  2. In case of order of status quo in most of the cases violation case is incompetent: In cases where the courts pass order to maintain status quo in respect of suit land, then under such vague order a petition u/r. 1(3) for punishment for violation of that order cannot maintain. Because, while passing the status quo order the court did not ascertain who is in possession and who would be restrained from entering into the possession thereto. In the violation case the court will only see whether the alleged violator has actually has entered into possession even after passing the order for temporary injunction it cannot determine who actually was in possession thereto. Such question can only be determined in the original suit at full trial. Therefore, the proceeding for violation of injunction order becomes infructuous. In support of this view we find authorities, e.g. 9 ADC 322, 31 DLR 117, 1 XP (AD) 49 para 28 = 24 BCR (AD) 15.
  • Order of status quo does not always mean granting injunction; rather it may mean refusing injunction: Another legal point is that status quo does not clearly mean of granting injunction in favour of petitioner; rather it has also a meaning of granting injunction against the petitioner in favour of the opposite party. In support of this view decisions may be referred to, 4 XP 56 para 9, 4 MLR (AD) 122, 8 BLD 145, 9 ADC 433 para 5. We have to object against such an order for that when the petitioner has come before the court for an order of injunction then if he has legal right he will get the same and if has not legal right to get the same his prayer shall be rejected. But in no case he shall be debarred from an act by an injunction for which the opposite party has not come and for which the petitioner has not given chance for being heard. Natural justice in no way permits that a petitioner shall be injuncted under his own petition.
  • It is not an injunction order at all; rather a directory which has no force of execution: We are struggling against such type of orders as to that it is well established principle that “An injunction is a judicial remedy by which a person is ordered to refrain from doing or to do a particular act or thing”, Halsbury’s Laws of England, 7 BLT 214, 53 DLR 161. By granting status quo no specific order is given, therefore, this is not an order of injunction at all; rather this is a general directive orders which is not to be come from a court of law, rather which is an order of guardians which may be honoured but not to be strictly followed.
  • This is irresponsible order; not a judicial order: Another reason that the in disposal of an application for temporary injunction the court’s first responsibility is to ascertain prima facie case and reasonability for granting injunction. But we observe that the courts by shirking this responsibility pass such a vague order and thereby pushing the helpless persons into various distresses.

Concluding talks: Under the reasons shown above, it is our view that no court of law should pass such a vague order as to that both parties are directed to maintain status quo in respect of possession of the suit lands. Rather if, after hearing, the court is satisfied that the applicant has a prima facie case of favouring injunction, it shall pass an order of injunction restraining the adverse party from dispossessing the applicant and if the court is satisfied that the applicant has no case of getting injunction, it shall reject the application. In support of this view of ours, we may rely upon the decision that “when the documents submitted by the plaintiff discloses prima facie case an order of temporary injunction should be passed to avoid further complication in view of present social condition and the tendency of litigant public to use force to come to possession under the garb of order of status quo”, 52 DLR 102 = 20 BLD 66.

N.B. This article is collected from this writer’s own book namely “Law and Practice the Code of Civil Procedure” (yet to be published).

About The Writer

Article Author Image

Md. Mukhlasur Rahman

Senior Assistant Judge, Iswargonj Chowki Court, Mymensingh;

Former Advocate of the Supreme Court of Bangladesh.

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