Drafting of Interim Applications, Notice of Motions (NM) and Chamber Summons (CIVIL LITIGATION DRAFTING 5)

Drafting of Interim Applications, Notice of Motions and Chamber Summons is an essential skill in civil litigation, as such applications are frequently filed to seek interim, interlocutory and procedural reliefs during the pendency of a suit. This module explains their structure, drafting strategy, important considerations and replies, with practical sample formats for use before different Courts.

TABLE OF CONTENTS

1. Introduction – Why Interim Application?

2. Distinction between Interim Application, Notice of Motion & Chamber Summons

3. Various Types of Interim Applications

4. Drafting of Interim Application / Notice of Motion under Order XXXIX Rules 1 & 2 CPC

5. Drafting of Application / Chamber Summons for Amendment of Plaint

6. Reply to Interim Applications, Notice of Motions and Chamber Summons

7. Sample Formats

1. Introduction – Why Interim Application?

A civil suit, from the filing of the plaint until the passing of the judgment and decree, is often a time-consuming process. During the pendency of the suit, it may become necessary to preserve and protect the subject matter of the litigation from alienation, transfer, destruction, encumbrance or creation of third-party rights; otherwise, any subsequent change in the subject matter may defeat or seriously prejudice the relief ultimately sought in the suit. Further, circumstances may change during the pendency of the proceedings, giving rise to the need for interlocutory or procedural orders, such as amendment of pleadings, impleadment of parties, appointment of a Court Receiver, production or preservation of documents or property, and other protective measures. To address such situations and ensure that the subject matter of the suit and the rights of the parties are protected until the final adjudication, the Code of Civil Procedure, 1908 provides for various interim and interlocutory remedies through appropriate applications before the Court.

2. Distinction between Interim Application, Notice of Motion & Chamber Summons

Although Interim Applications, Notice of Motions and Chamber Summons are broadly similar in the sense that they are procedural applications made during the pendency of a proceeding for seeking interim, interlocutory or procedural reliefs, the terminology and procedure differ depending upon the practice and rules of the particular Court. In Maharashtra, for example, the District Courts generally use the terminology of Interim Applications, whereas the Bombay High Court on its Original Side has, since the introduction of Chapter IX-A, provided for interim reliefs to be sought by way of Interim Applications. The Bombay High Court's Original Side Rules specifically provide that applications for interim relief on the Original Side are to be filed as Interim Applications, replacing the earlier practice of Notices of Motion and Chamber Summonses for such reliefs. On the other hand, Notice of Motion and Chamber Summons continue to be encountered in the practice of the City Civil Court, Mumbai, depending upon the nature of the relief and the applicable procedural practice.

Broadly understood:

• Interim Application (IA): An application filed during the pendency of a proceeding seeking interim, interlocutory or procedural relief from the Court.
• Notice of Motion (NM): A procedural mode traditionally used to seek interim reliefs, particularly injunctions and other urgent protective orders, where the applicable Court rules provide for such procedure.
• Chamber Summons: A procedural application traditionally used to seek specific interlocutory or procedural orders, such as amendment of pleadings, impleadment of parties where the applicable Court practice requires or permits a Chamber Summons.
• Choice of procedure: The appropriate form is determined not merely by the nature of the relief but also by the rules and practice of the particular Court; therefore, the advocate must always verify the applicable procedural rules before taking out an IA, NM or Chamber Summons.

For example, in a Civil Court outside Mumbai and on the Original Side of the Bombay High Court, an application seeking temporary injunction under Order XXXIX Rules 1 and 2 of the CPC is generally taken out by way of an Interim Application, whereas the corresponding relief before the City Civil Court, Mumbai is sought by way of a Notice of Motion.

Similarly, for amendment of the plaint under Order VI Rule 17 CPC, an Interim Application is filed before the Civil Courts outside Mumbai and on the Original Side of the Bombay High Court, whereas a Chamber Summons is traditionally used before the City Civil Court, Mumbai. Thus, while the substantive provisions of the CPC remain the same, the procedural form and nomenclature for seeking relief may differ depending upon the rules and practice followed by the particular Court.

3. Various Types of Interim Applications

During the pendency of a civil suit, several applications may be required depending upon the facts and developments in the case. Such applications may include an application for temporary injunction to restrain a party from committing or continuing a particular act; an application for appointment of a Court Receiver for preservation, protection or management of the subject matter of the suit; an application for attachment before judgment to secure the plaintiff’s claim; an application for preservation, detention or inspection of property or other evidence; an application seeking stay or other protective/interlocutory orders; an application for ad-interim relief where immediate protection is required pending hearing of the main interim application; an application for amendment of pleadings; an application for impleadment, deletion or addition of parties; and applications seeking discovery, inspection, production of documents, disclosure of documents, extension of time, condonation of delay, restoration of proceedings, substitution of parties, or other procedural and consequential directions. These are only some of the common types of interim or interlocutory applications, and the nature of such applications is not exhaustive and may vary depending upon the facts of the case, the relief sought and the procedural requirements of the particular Court.

4. Drafting of Interim Application / Notice of Motion under Order XXXIX Rules 1 & 2 CPC

An application seeking temporary injunction under Order XXXIX Rules 1 and 2 CPC is one of the most common interim applications in civil litigation. While drafting such an application, the following aspects should be kept in mind:

i. Structure and Format

• Proper cause title, provision, brief facts, grounds and precise prayer.
• Follow the rules and practice of the particular Court.

ii. Essential Pleadings – Triple Test

• Prima Facie Case: Establish the applicant's arguable legal right requiring protection.
• Balance of Convenience: Show that greater prejudice would be caused if the injunction is refused.
• Irreparable Injury: Show that the injury cannot be adequately compensated by monetary damages.
• The application should plead the material facts supporting all three requirements, rather than merely stating these expressions.

iii. Urgency and Ad-Interim Relief

• State the circumstances creating urgency and the immediate threat or apprehension.
• Where ad-interim/ex parte relief is sought, explain why immediate protection is necessary.
• The ad-interim prayer should be specific and limited to the protection required.

iv. Supporting Affidavit and Documents

• Supporting Affidavit: The application should be supported by an appropriate affidavit, wherever required by the applicable rules and practice of the Court.
• Documents: All material documents relied upon to establish the applicant’s right, the threatened action and the urgency should be properly annexed and specifically referred to in the application.
• Bombay High Court – Original Side: A separate affidavit in support of an Interim Application is not required. Under Rule 125 of Chapter IX-A of the Bombay High Court Original Side Rules, the Interim Application itself is required to be signed, verified and affirmed in the same manner as a petition. The relevant documents relied upon should be properly annexed and referred to in the Interim Application.

5. Drafting of Application / Chamber Summons for Amendment of Plaint

An application for amendment of the plaint under Order VI Rule 17 CPC is filed when the amendment is necessary for determining the real questions in controversy. While drafting such application, the following aspects should be considered:

i. When Amendment Can Be Sought

• State why the proposed amendment is necessary for determining the real controversy.

ii. Drafting the Proposed Amendments

• Clearly set out each proposed amendment with reference to the relevant paragraph of the plaint.

iii. Grounds for Amendment – Why Amendment is Necessary

• Explain the reason for the amendment and its relevance to the dispute.

iv. Delay and Due Diligence

• If the trial has commenced, explain why the amendment could not have been raised earlier despite due diligence.

v. No Prejudice to the Opposite Party

• State that the amendment is necessary, does not fundamentally change the nature of the suit, and will not cause prejudice to the opposite party.

6. Reply to Interim Applications, Notice of Motions and Chamber Summons

The manner of drafting a reply depends upon the procedural form adopted by the particular Court. A Reply to an Interim Application is generally drafted in the style of a written statement, with paragraph-wise replies to the averments made in the application, specifically admitting, denying or dealing with each material contention, followed by the Respondent's grounds and objections and a verification clause. 

On the other hand, a Notice of Motion or Chamber Summons is ordinarily opposed by filing an Affidavit in Reply, setting out the factual and legal objections to the reliefs sought, dealing with the averments in the application paragraph-wise wherever necessary, and placing the Respondent's case and supporting documents before the Court.

While drafting a reply or affidavit in reply, the advocate should carefully address the maintainability of the application, delay or laches, suppression of material facts, disputed questions of fact, absence of prima facie case, balance of convenience and irreparable injury, where relevant, and should specifically oppose each substantive prayer rather than merely making a general denial. The reply should also distinguish between facts within the Respondent's personal knowledge, matters based on documents or records, and legal submissions, and should avoid introducing a completely new case beyond the pleadings. The appropriate form, verification or affirmation requirements, filing procedure and opportunity to file a rejoinder should always be checked with reference to the rules and practice of the particular Court.

7. Sample Formats

In this section, we have provided sample formats of different types of interim applications and interlocutory applications to help understand their structure, drafting style and presentation before different Courts. Although the procedural form may differ—for example, an Interim Application and a Notice of Motion may be used for seeking similar interim reliefs under the CPC—their underlying purpose remains the same, i.e., to seek appropriate interim or interlocutory relief from the Court. The formats provided below are specifically based on the practice followed by Courts in Maharashtra. Advocates should, however, always verify and follow the applicable rules, formats and practice of the Court in which they are practising.

a. Sample Interim Application before the Bombay High Court, Original Side, seeking interim relief.

b. Sample Interim Application before the Civil Judge, Senior Division, Thane, seeking interim relief.

c. Sample Notice of Motion before the City Civil Court, Mumbai, seeking interim relief.

d. Sample Chamber Summons before the City Civil Court, Mumbai, seeking amendment of the plaint.

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