This article is written by Aarchie Chaturvedi, a 1st-year student currently pursuing B.A.LL.B from NUSRL, Ranchi. This is an exhaustive article about injunctions describing its types and including the concepts of discretionary relief, disobedience, arbitration and damages in cases of injunction.
What is Injunction?
Injunction litigation is a crazy ride consisting of low points, high points, twists, turns, and challenges. An injunction by its very name means a preventive relief. The grant of an injunction is an equitable remedy that prevents a defendant party from doing certain demonstrations or certain acts so that they are not bothersome or do not cause any nuisance to the plaintiff.
When a court comes with a judgment in such a suit, the parties must abide by and adhere to the ruling, in the absence of which there can be severe monetary penalties or even imprisonment in a few cases.
Explanation of important terms
- Prima facie– The word “prima facie” means either on first sight or on the first presence or on the face of it. Prima facie case means that recorded evidence should fairly enable the complainant’s search for the inference.
- Irreparable injury– “Irreparable harm” means any injury that cannot be fixed by damages adequately. The remedy in the form of damages would be insufficient if any is payable to the plaintiff in the case of victory in the litigation. It will not put him in the place where he was before the injunction was denied.
- Balance of Convenience– The question of balance of convenience arises where there is uncertainty as to the satisfactorily of the respective remedies in damages available to either party or both. The parties must strike a proper balance and the balance can not be a one-sided affair.
Kinds of injunction
The Specific Relief Act, 1963 discusses the various types of injunctions. To prevent possible future injury to the plaintiff, the plaintiff would have to bear if the relief is refused, there are certain kinds of injunctions provided as mentioned below:
- Temporary Injunction
- Perpetual Injunction
- Mandatory Injunction
What is Temporary injunction?
Under the Specific Relief Act, 1963, Section 37 deals with a temporary injunction. Temporary injunctions continue for a specified period of time or until the further order of the court. They may be allowed at any stage in a suit and are managed by the Code of Civil Procedure (1908).
The essential purpose for granting this injunction is to secure the interests of an individual or the property of the suit until the final judgment is passed. The factors looked into while providing such an injunction are:
I. If a party has a case of prima facie?
II. If the balance of convenience is in favor of the complainant?
III. Whether the plaintiff would suffer irreparable damages before the judgment is passed?
Some examples of cases stated in the CPC where temporary injunction can be granted are:
- Where any property in dispute in a suit, which is probable of getting wasted, destroyed or estranged by any party to the suit, or illegally sold in execution of a decree; or
- Where the defendant threatens to remove or dispose of his property in order to defraud his creditors; or
- Where the defendant threatens to deprive the plaintiff of his property or threatens to cause injury to the plaintiff in connection with the property in dispute in the suit; or
- In any case to prevent the defendant from committing a breach of a contract or any other injury;
- Where pursuant to sections 38 and 41 of the Specific Relief Act, no perpetual injunction or mandatory injunction could be granted;
- Where to stay, the operation of an order for the transfer, suspension, reduction of rank, obligatory retirement, dismissal, removal or otherwise termination of service of any person appointed to public service and post in connection with State affairs, including any employee of any company or company-owned or controlled by the Government of the State;
- Where to stay any disciplinary proceedings, pending or intended or having the effect of any adverse entry against any person appointed to the public service and to post in connection with the State’s affairs, including any employee of the company owned or controlled by the State’s government; or
- To restrict any election;
- Where to restrain any auction intended to be made or restrain the effect of any Government auction; or stay the proceedings for the recovery of any dues recoverable as revenue on land unless adequate security is provided, and any injunction order granted in breach of these provisions shall be void.
In all cases, except where the object of granting the injunction appears to be defeated by the delay even before the injunction is granted, the Court shall issue a direct notice of the request for the same to be given to the other party:
Provided that, where it is proposed to grant an injunction without notice to the other party, the Court records the reasons for its view that the purpose of granting the injunction would be defeated by delay and requires the applicant to:
(a) deliver to or send to the other party by registered post, immediately after the order of granting the injunction,
(i) a copy of the request for the injunction together with a copy of the affidavit filed in support of the request;
(ii) a copy of the complaint; and
(iii) a copy of the documents on which the applicant relies;
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.
However, the court must dispose of such suits within a period of thirty days from the date of granting an injunction and in instances where it is not able to do so, it must specify the reasons for its inability.
Order for injunction may be discharged, varied or set aside– The CPC also states that, at the request of any party who is dissatisfied with the order, any order for injunction may be discharged or varied or set aside by the Court; subject to the knowledge that if a party made a false or misleading statement in a request for a temporary injunction or in any affidavit support, for such a request.
Furthermore, where an injunction has been issued after giving a party the opportunity to be heard, the order shall not be discharged, varied or set aside on the request of that party unless such discharge, variation or set-aside is necessitated by a change of circumstances or unless the Court is satisfied that the order has caused that party difficulty and hardship.
Injunction to a binding corporation on its officer– An injunction to a corporation is binding not only on the corporation itself but also on all members and officers of the corporation whose personal actions it seeks to curtail.
The interlocutory orders passed with regard to injunctions as stated in the CPC are as follows:
Power to order interim sale– Upon application by any party to a lawsuit, the Court may order the sale by any person named in that order, and on such terms as it considers fit, of any movable property that is the subject of such a lawsuit or that is attached before a judgment in such a lawsuit, which is subject to rapid and natural decline or which it may, for any other just and sufficient reason may be desirable to be sold off.
Detention, preservation, inspection, etc. of the subject-matter of the lawsuit:
(1) the Court may, at the request of any party to the proceedings and under such conditions as it considers fit:
(a) make an order for the detention, preservation or inspection of any property that is the subject of the proceedings or as to which any question may arise therein;
(b) for all or any of the aforementioned purposes authorize any such person for any such purpose;
(c) authorize samples to be taken or any observations to be made or experiments to be tested for all or any of the aforementioned purposes which may seem necessary or useful for the purpose of obtaining full information or evidence.
(2) The provisions governing the execution of the proceedings shall, mutatis mutandis (making necessary alterations while not affecting the main point at issue), apply to a person authorized to enter under this rule.
Application for such orders to be made after notice:
(1) The plaintiff may request an order under Rule 6 at any time after the suit has been instituted.
(2) An application by the defendant for a similar order may be made at any time after its appearance.
(3) Before making an order pursuant to Rule 6 or Rule 7 on an application for that purpose, the Court shall, except where it appears that the purpose of making such an order would be defeated by a delay, issue a direct notice to the other party.
When a party may be put in immediate possession of land which is the subject-matter of a suit: Where land paying revenue to Government, or a tenure liable to sale, is the subject-matter of a lawsuit, if the party in possession of such land or tenure fails to pay the Government revenue, or the rent due of the tenure to the proprietor, as the case may be, and such land or tenure is consequently ordered to be sold, any other party to the lawsuit claiming to have an interest in such land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the Court), be placed in immediate possession of the land or tenure; and the Court in its decree, may award to the defaulting party the amount so paid, with interest thereon at the rate that the Court considers fit, or may charge the amount so paid, with interest thereon at the rate ordered by the Court, in any adjustment of the accounts may be directed by the decree passed in the suit.
Deposit of money, etc. in Court: Where the object of a lawsuit is money or anything else capable of delivery and any party thereof admits that it holds such money or anything else as a trustee for another party or that it belongs to or is due to another party, the Court may order the same to be deposited in court or delivered to that last-named party, with or without security, subject to the provisions of the judgment.
What is Perpetual Injunction?
When perpetual injunction is granted by the judgment it ultimately disposes of the injunction suit. It is ordered at the time when final judgment is given. It is a final relief injunction and is not given on an interim basis. The granting of a perpetual injunction is defined under Section 37 (2) of the Specific Relief Act, 1963. The section says that only by the decree issued after an inquiry and on hearing the merits of the case can a perpetual injunction be granted; the defendant is thus perpetually enjoined to exercise his right or to forever pervade his conduct which would be in conflict with the rights of the plaintiff. According to Section 38 of the aforesaid Act, the perpetual injunction can be granted to the plaintiff when:
(1) In order to avoid a breach of duty in his favor, either specifically or by consequences, subject to the other requirements contained or as provided for in this Section; and
(2) If such obligations occur out of the contract, the court shall be directed by the provisions and rules contained in Chapter II of the Specific Relief Act, 1963; and
(3) When the defendant invades or attempts to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:
(a) where the defendant is the plaintiff’s property custodian;
(b) where there is no standard for the determination of the actual damage caused, or where the invasion can reasonably be caused;
(c) where the invasion is such that adequate aid and help cannot be provided by compensation in money;
(d) where the injunction is required to avoid the ever-rising increase in the no.of multiplicity of judicial proceedings. Thus, there are different reasons for the existence of a perpetual injunction.
The plaintiff must prove the breach of the obligation by showing the infringement of a legal right, thus the burden of proof lies with the plaintiff. The plaintiff must also lawfully possess the item and must prove that the defendant had no legal possession over the item. Injunction cannot be sustained on the basis of wrongful possession against the lawful owner.
The continuance of possession by the lessee (a person who holds the lease of a property; a tenant) without the consent of the lessor (a person who leases or lets a property to another; a landlord) may not be “lawful possession” but it is “juridical possession” and the juridical possession is protected by law and injunction can be granted in such cases.
Ownership and lawful possession are two different things, a person can be evicted by the process of law and such a person can resist any kind of invasion by the real owner and may be granted injunction. The contract for litigation fund is not per se illegal and the court can grant an injunction to protect the rights of the plaintiff arising out of the obligation. In the case of Nuthaki Venkataswami v. Katta Nagi Reddy, the court held that the champertous agreement in itself is not void and if the recovery is not against public policy, they can’t be called illegal and thus injunction may be granted.
In the case of Walter Louis Franklin v. George Singh, where the plaintiff filed a pleading before the court to grant perpetual injunction to restrain the defendant from unlawfully using his land where the defendant claimed that he was the real owner, the court, however, held that the perpetual injunction shall be granted as the land was in the possession of the plaintiff.
What is Mandatory Injunction?
Section 39 of the Special Relief Act, 1963 deals with the Mandatory Injunction. The section doesn’t clearly define mandatory injunction but deals with the grant of a mandatory injunction. The section says that in order to prevent the breach of an obligation the court can compel the performance of certain actions at its discretion which it is capable of enforcing and can issue injunctions for the infringement complained of. The principle of mandatory injunction is used to grant final relief and not the interim reliefs like in exceptional or exemplary cases like saving life, etc. There are essentially two conditions requested for mandatory injunctions:
(a) the defendant must be obliged to perform an act and any such breach of the obliged act must be claimed by the plaintiff;
(b) the reliefs, as asked for must be enforceable by the court. The principle says that the defendant must do a positive act in order to restore the wrongful act committed by him.
In Dorab Cawasji Warden v. Coomi Sarab Warden, the Supreme Court held that:
- The complainant must present a strong case in the court and it should be of a level higher than that of the prima facie case;
- the plaintiff must make it clear that the grant of a mandatory injunction is obligatory to prevent irreparable damage or serious injury which cannot be compensated in terms of money; and,
(c) the balance of convenience should also be in favor of the complainant as against the defendant.
In the case of Laxmi Narain Banerjee v. Tara Prosanna Banarjee, where the plaintiff and the defendant were joint owners of the land and the defendant planted several trees that penetrated the foundation of the building and damaged it, the plaintiff then prayed for mandatory injunction to the court and the court accordingly granted it and held that the roots were damaging the building that belonged to the plaintiff. On the contrary note, in the case of N.E. Sankarasubbu Pillai v. Parvathi Ammal Others, the plaintiff whose right to land was encroached by the defendants, pleaded before the court to grant a mandatory injunction which was not granted as the essential conditions for the mandatory injunction was not fulfilled. However, in the case of C. Kunhammad v. C.H. Ahamad Haji, where the plaintiff demanded a mandatory injunction alleging that his land had been trespassed by the defendant by drawing a pipeline on his land and digging a trench up to 65 feet. The court in this case accordingly granted it as it held that the essentials were fulfilled and directed the defendant to remove the pipeline.
Difference between temporary and mandatory injunction
1. Temporary injunctions continue for a specified period of time or until the further order of the court.
1. The principle of mandatory injunction is used to grant final relief and not the interim relief.
2. It is discussed under Section 37 of the Specific Relief Act, 1963.
2. It is discussed under Section 39 of the Specific Relief Act, 1963.
3. The essential purpose for granting this injunction is to secure the interests of an individual or the property of the suit until the final judgment is passed.
3. The essential purpose of granting a mandatory injunction is to control exceptional or exemplary cases like saving a life, etc.
4. The factors looked into while providing such an injunction are:
I. If a party has a case of prima facie?
II. If the balance of convenience is in favor of the complainant?
III. Whether the plaintiff would suffer irreparable damages before the judgment is passed?
4. There are essentially two conditions requested for mandatory injunctions.
(a) the defendant must be obliged to perform an act and any such breach of the obliged act must be claimed by the plaintiff.
(b) the reliefs, as asked for must be enforceable by the court.
The principle says that the defendant must do a positive act in order to restore the wrongful act committed by him.
5. This kind of injunction was also provided as under the case of Union of India v. Bhuneshwar Prasad, where a railway employee who had filed a suit against his removal from service stating that his suspension was illegal. He was granted an interim injunction restricting the defendant from removing him from service until the suit is decided and it was also observed that this did not mean that he would be put back to work. If a case is a proper one for specific performance and the plaintiff is likely to suffer irreparable injury unless the breach of contract is immediately restrained, the court will grant a temporary injunction to limit the breach of contract.
5. An example of this kind of an injunction can be the case of Laxmi Narain Banerjee v. Tara Prosanna Banarjee, where the plaintiff and the defendant who were joint owners of the land and the defendant planted several trees that penetrated the foundation of the building and damaged it, the plaintiff then prayed for mandatory injunction to the court and the court accordingly granted it and held that the roots were damaging the building that
belonged to the plaintiff. Thus two conditions essential for mandatory injunction were fulfilled. Firstly, the defendant was obliged to see that the trees he planted did not penetrate and damage the foundation of the building but he failed to do so. And secondly, the damages asked for by the plaintiff were enforceable in the particular court and so the mandatory injunction was granted.
Concept of discretionary relief in relation to the grant of injunction
Section 36 of the Specific Relief Act, 1963 discusses the circumstances where the court at its discretion can accept or refuse the enforcement of injunctions. To grant specific enforcement is the discretionary power of the court and it is on its discretion to choose a particular road of whether enforcing it or not. The court is not bound by specific performance just because something is lawful. However, the court is not allowed to act arbitrarily on its whims and fancies. The discretionary powers of the courts must be exercised on grounds of proper rationale and reason. Discretion should be exercised with respect to the principles of justice, equity, good conscience and fairness to both parties.
Sub-section(2) under this enumerates situations in which a court can deny enforcement. Some of them being unfair contracts (giving unreasonable benefits to the plaintiff over the defendant) contingent contract, incomplete contracts, etc. Sub-section(4) under this section enumerates that the court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the option of the other party.
It was also held that the plaintiff must come with clean hands while asking for enforcement of some injunction and the very nature of jurisdiction under this Act has been held to be just and equitable.
The Supreme Court has restated the factors which have to kept in mind while exercising the power of discretion by the courts which are:
- Whether the complainant was ready and willing to perform his part under the terms of Section 16,
- Whether it was a case of discretion by the court for decreeing specific performance under Section 16, &
- Whether there was an unreasonable delay on the part of the plaintiff in approaching the court.
This discretionary power of the court is also supported by Section 20(C) of the Specific Relief Act, 1963 which states that irrespective of anything or any provisions of law stated in the Civil Procedure Code,1908 a court can dismiss a suit within a period of 12 months from the date of service of summon to the defendant. The said period can also be exceeded to a period of six more months after reasons for such an extension is provided in writing by the court.
Disobedience of breach of an order of injunction
Although an injunction is a remedy in itself, in the event of a breach of this order, there needs to be another remedy to protect the complainant. The Latin term ‘Ubi jus ibi remedium’ which means where there is a right there is remedy is often used in explaining this concept as courts also need a remedy against the person who breaches their order to prevent further dishonoring of their orders.
The remedies available for a breach of injunction are as follows:
- Order 39 Rule 2A of the Civil Procedure Code– The CPC states that the court that granted the order or any other court to which the case was referred to may order the attachment of property of the individual, culpable of such disobedience, in view of the ‘disobedience of the breach of injunction’ or in view of the disobedience of the terms under which the injunction was granted. The court may also require the person to be detained in civil prison for a period of time not exceeding three months. However it must be noted that nothing attached under this order shall remain in force for a period of more than one year and if at the end of one year the breach continues to occur, the attached property may be rented out and the court will award compensation as it finds appropriate to the injured party and pay balance if any to the party entitled to it.
- Order 21- Rule 32 of the Civil Procedure Code– It provides that a defendant who failed to comply with the decree will in the first place forfeit his right of ownership and the Court may later seize his property at its discretion.
Arbitration process under the granting of an injunction
‘Notwithstanding anything contained in Part I of the CPC, a judicial authority when seized of an action in a suit for which the parties have entered into an agreement, may refer to Section 44 of Arbitration Act, 1996, and shall refer the parties to arbitration at the request of any of the parties or of any person claiming by or under it, unless it finds that the agreement is void, inoperative or unable to be concluded by the parties.’
Damages in lieu of or in addition to the failure of performance of the injunction order
(1) In a claim for a perpetual injunction pursuant to Section 38 or for a mandatory injunction pursuant to Section 39, the plaintiff may claim damages in addition to or in substitution for such injunction, and the court may, if it considers it appropriate, award such damages.
(2) No compensation under this provision shall be granted unless the claimant requests such relief in the plaint. Provided: that where no such damages have been asserted in the plaint, the court shall, at any point of the trial, which may be just and fair for that argument, allow the plaintiff to amend the plaint.
(3) The dismissal of a claim to avoid the breach of a contract existing in favor of the plaintiff shall preclude his right to sue for damages for such infringement.
Injunction is an equity-based relief. It is completely at the court’s discretion to grant an injunction or to refuse it. The relief cannot be claimed as an affair of right however worthwhile the applicant’s case may be. The power to grant an injunction must, therefore, be exercised with the utmost prudence, vigilance, and care. It is an extraordinary and sensitive power that is associated with the risks of imposing losses or disadvantages upon the innocent party. Thus unlike all other things in this world, the grant of an injunction is also not absolute.
One of the greatest hurdles in administering justice today is a delay. Delay in justice needs to be tackled by the joint efforts of all stakeholders. However, the harsh truth in today’s world is that we are progressing towards a society that is overrun by hordes of lawyers, hungry like locusts, and bridges of judges in numbers that have never been considered before. But it is wrong to believe that ordinary people want black-robed judges, well-dressed lawyers, fine-tuned courtrooms to resolve their disputes. People with legal issues, such as people with pain, want relief and want it as quickly and cheaply as possible and Injunction is just one of the methods to help those people in pain to seek relief.
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