Drafting the Application: What the Affidavit Must Contain
A stay application succeeds or fails on its affidavit, not on the length of its prayer. The triple test of prima facie case, balance of convenience and irreparable injury is well known; what is less well known is that each limb must be supported by facts that the court can verify from documents, and that the application must explain its own delay. A stock application copied from another matter is the single most common reason interim relief is refused on the first date.
- The order or action sought to be stayed, identified by date, number and authority, with a copy annexed and the date of communication or knowledge stated.
- The main proceeding in which the application is filed, with its number, and confirmation that the application is ancillary to it.
- Prima facie case expressed as propositions of fact and law, each tied to a document. “The plaintiff has a strong case” is not a prima facie case; “the sale deed dated … was executed by a person who had already conveyed his share by an earlier registered deed at page …” is.
- Irreparable injury, described concretely: demolition, dispossession, alienation to a third party, felling of trees, a demand that will be recovered coercively. Money loss is compensable and, standing alone, usually insufficient.
- Balance of convenience, comparing the harm to each side if the order is or is not granted, and offering an undertaking to compensate if the stay is later found to have been obtained wrongly.
- Explanation for delay, day by day, if the application is not prompt. Unexplained delay is treated as waiver.
- Full and frank disclosure of every earlier proceeding, order and application between the parties, including ones in another court. Concealment, once detected, ends the stay and can attract costs.
Where urgency is genuine, the application is accompanied by a mention slip and the matter is mentioned before the appropriate Bench at the first opportunity, with the opposite party either served or given short notice. An ad interim order obtained without any attempt at notice is vulnerable to being recalled at the very next hearing, so the safer practice is to serve a short notice and record the attempt.
Choosing the Forum and the Right Kind of Relief
| What you want stopped | Forum | Relief |
|---|---|---|
| Execution of a decree already passed | Appellate court hearing the appeal | Stay of execution under O.XLI r.5 CPC |
| Ongoing construction or interference with possession | Civil court seized of the suit | Injunction under O.XXXIX rr.1–2 CPC |
| Municipal demolition or sealing notice | Calcutta High Court, writ jurisdiction | Stay of the notice pending hearing |
| Recovery notice from a bank or authority | Writ court or the forum hearing the challenge | Stay of coercive recovery, often on deposit |
| Parallel proceedings on the same issue | Court where the later proceeding is pending | Stay of proceedings under s.151 CPC |
A word on the last row: a stay of proceedings is not granted merely because two cases exist. The applicant must show that the later case is an abuse of process, or that the decision in the earlier one will conclude the issue. Indian courts do not stay a suit simply because a criminal complaint arising from the same transaction is pending; the standards are different, and the civil court is entitled to proceed on the preponderance of probabilities.
Frequently Asked
Can a stay be granted without hearing the other side? Yes, as an ad interim arrangement where the urgency and the prima facie case justify it, but it lasts only until the next date. Expect to justify it again, on notice, within weeks.
What does a stay cost me? Usually an undertaking or, in recovery matters, a deposit of part of the demand. Courts increasingly condition interlocutory protection on payment, and refusing to offer any terms weakens the application.
Can the order be violated with impunity? No. Disobedience is civil contempt, and the court can also undo the act done in breach — a sale completed in defiance of a stay can be set aside, and the parties to it exposed to costs.
How long can I keep it alive? As long as the main case is prosecuted with reasonable diligence. A stay that sits over a dormant suit is vacated on the other side's application, and repeated adjournments requested by the stay-holder are the usual trigger. For a stay application in a pending Kolkata matter, contact the chamber at 14 Hare Street.