injunction

In this article, Pallavi Tiwari from Dr. Ram Manohar Lohiya National Law University discusses cases in which temporary injunction may be granted

Injunction and its types

  • An injunction is a preventive remedy granted to a party aggrieved by the acts of another party, and thereby refrain the wrongdoers to pursue the acts performed by them, to evade any further injury and thus considers equity.[1] The law regarding injunction in India is governed by the Specific Relief Act, and falls under two categories Permanent and Temporary.
  • Temporary injunctions have been provided under Rule 1 and 2 of Order 39 of the Code of Civil Procedure, and permanent or perpetual injunctions have been provided under the Specific Relief Act.
  • The difference lies between them as to permanent injunctions where the restraint is to last forever, whereas temporary injunctions, also known as, interlocutory injunctions, may be instituted, at any point of a suit, and shall persist until the court gives any further order or the suit is disposed off.
  • There are two kinds of temporary injunction involving ad interim and temporary injunction wherein the former comes into play when the application for temporary injunction has not been disposed off completely, but it is the immediate reaction, and the latter is granted when the application has been completely disposed off.

Under Rule 1, both the plaintiff and defendants can approach the court[2], and exparte order cannot be given, but if given then it should be of a very small duration.[3] To accomplish the objectives of Temporary Injunction there are few factors that need to be considered:[4]

  • There has to be a prima facie case.[5]
  • A balance of convenience has to be maintained.
  • There has to be an irretrievable damage.

After considering these factors, the cases in which such injunction can be granted has to be looked upon:

  1. Grant of injunction against government bodies and public officer governed by Section 80 of the Code, making it mandatory for the notices to be served prior to the injunction.[6] Injunction in such cases may be granted to maintain a status-quo and thus to prevent the authority to perform a certain task.[7]
  2. Protection against Nuisance: Injunction cannot be granted in every act of nuisance, nuisance should involve factors such as harm to any person physically or mentally or deteriorating the image of the person in public. Injunction in such cases is granted on the basis of equity to stop the defendants from causing the injury or annoyance.

Further, Order 39 Rule 1 and mentions the cases in which temporary injunction may be granted

  1. A temporary injunction can be brought against alienation when the plaintiff fears that the defendants might dispose off the property or assets before the final decree is pronounced by the Courts. A bona fide possessor of property should not be dispossessed pending suit unless there is some substantial reason. The matter should be considered judicially in all its aspects. The plaintiff must show prima facie that he has a strong case that is, either a good title to the property or a special equity in his favor requiring immediate dispossession of the defendant, or the property is in danger of being wasted.[8] If the rightful owner threatens his peaceful possession, he can approach courts of law and pray for equitable relief of injunction to protect his possession.[9] But when it is doubtful to come to conclusion that the plaintiff’s possession of the property is doubtful, O 39, r 1 of the Code has no application.[10]
  2. Where there is an involvement of fraudulent intention to harm the creditors by removing or disposing off the property.
  3. On the basis of equity and justice temporary injunction may be granted.[11]
  4. Where a defendant threatens to dispose off the plaintiff or cause injury to him involving any property in a suit. Where a plaintiff who is out of possession claims possession, the court will not grant an injunction against the defendant in possession under a claim of right unless the threatened injury will be irreparable and an injunction may be granted as to the user of premises which the plaintiff has leased to the defendant.[12] Further, injunction is terms of right to worship are not covered under this rule.
  5. Temporary injunction may granted in cases where property is in danger of being wrongfully sold in execution of a Decree. In a case, certain property attached in execution of a decree obtained by A against B is notified for sale at the instance of A. C, challenging that the property belongs to him and not to B, sues A and B for declaration of his title to the property, and applies for an injunction under this rule to restrain A from bringing the property to sale until the suit is disposed of. If the property in dispute in the suit is in danger of being wrongfully sold in execution of the decree the court has the power to grant the injunction under this rule.[13] However, in a suit by A against B, A cannot get an injunction to restrain B from selling property which is also the subject of another suit by B against A and in which A has not filed an appeal.[14]

In an execution of the decree, where, the property has been sold, injunction can be issued restraining the purchaser from taking possession pending the suit as was observed in Inayat Ullah v. Gurdit Singh[15], that as delivery of possession is part of the sale, the court has the power to issue injunction restraining the defendant from taking possession.

  1. Where a suit is filed to declare that a decree in an earlier suit is vitiated by fraud, an interim injunction to restrain execution can be granted, on prima facie proof of fraud.[16]
  2. Temporary injunction may be granted in Tenancy cases, where is a case named Bhola Nath v. Maharajj Raj Saheb[17], a plaintiff was a lessee who continued in possession over a long stretch of time by holding over after termination of the lessee. The lessor sought to evict the plaintiff otherwise than in due course of law. It was held that the plaintiff could be granted a temporary injunction, restraining the defendant from evicting the plaintiff otherwise than in the course of law.
  3. In case of Coparcenary, in a suit for partition and accounts, when an injunction is sought to restrain the defendant co-sharer from transferring his share pendent lite, the legal position according to the Gujarat High Court was finally observed in the case of Ibrahim Shah Mond v. Noor Ahmed[18]. To avoid situations of multiplicity of proceedings the court should issue an injunction restraining the co-sharer defendant from transferring his share pendente lite.

Order 1 Rule 2 talks about cases where injunction can be granted to restrain repetition or continuous of breach-

  1. Temporary injunctions to restrain the breach of a contract are regulated by the present rule. For example, in the case of Union of India v. Bhuneshwar Prasad[19]that a railway employee who had filed a suit for a declaration that his removal from service was illegal was entitled to an interim injunction restraining the defendant from removing him from service pending the suit, and it was observed that this did not mean that he should be put in charge of his work. If a case is a proper one for specific performance, and an irreparable injury is likely to be caused to the plaintiff unless the breach of contract is forthwith restrained, the court will grant a temporary injunction to restrain the breach of contract.
  2. In cases of injury which is a result of the execution of a decree obtained by fraud and an injunction (to restrain such execution) may be issued in an appropriate case.[20] It was observed in the case of S Hardayal Singh v. Nirmala Devi that any intolerable unlawful disturbance to a neighbor may justify the grant of an injunction and plaintiff needs to show a substantive right in respect of which the plaintiff seeks an injunction.[21]
  3. In the case of Chitra v. Dhrubha Jyoti[22] it was observed that where the husband has obtained a decree of divorce against which the wife appealed, the wife can obtain a temporary injunction restraining the husband from marrying again during the pendency of the wife’s appeal.
  4. After termination of an agency, the agent has no right to remain in possession of the property given by the principal, and thus temporary injunction can be obtained.[23]
  5. Temporary injunction can also be granted in cases if trademark, copyright or patent infringement, governing interlocutory injunction.
  • Three factors have to be considered:
  • (a) whether a prima facie case lies;
  • (b) there is a balance of convenience between the parties;
  • (c) if the injunction is not granted then there shall be an irreparable injury. Same situation lies for copyright and passing off.[24]
  • In trademark infringement suits an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiff’s mark.[25]
  1. Temporary Injunction can be issued in various judgments of the Supreme Court that in law relating to the bank guarantees, a party seeking injunction from encashing of bank guarantee has to show prima facie case of established fraud and an irretrievable injury.[26]
  2. In advertising agreements with an advertising agency the client undertook not to engage any other advertising agency till the dues of the first agency were paid. It was held that temporary injunction to enforce the negative covenant could be issued.[27]
  3. Public interest is one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction, and court should exercise its adequate jurisdiction to do the same.[28] Prima facie merit of the case and balance if convenience of the party cannot be forgone on the ground that ‘what is sought to be done is for the happiness of the many.’

Thus, considering these cases together Order XXXIX Rule 1 and 2 govern the examples in which such temporary injunctions could be granted by courts considering the facts and circumstances of the case.

 

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[1] Shamsher v. Rustom, AIR 1988 Raj 188.

[2] Sathyabhama Amma v. Vijaya Amma, AIR 1995 Ker 74.

[3] Industrial Credit and Investment Corpn. Of India Ltd. v. Grapco Industries Ltd., [1993] 3 LRI 538.

[4] Radhakrishna v. Purnanand, AIR 1978 AP 103.

[5] Prakash Singh v. State of Haryana, 2002 (4) Civil L.J. 71 (P.H.).

[6] Harikishanlal v. State of Jammu & Kashmir, (1994) 4 S.C.C. 422.9c

[7] Seema Arshad Zaheer & Ors. V. Municipal Corporation of Greater Mumbai and Others, (2006) 5 SCC 282.

[8] Ravi Kumar v. Misha Vadhera, AIR 1995 Del 175.

[9] Sarladevi v. Shailesh, AIR 1996 Bom 98.

[10] Dasnam Naga Sanvasi v. Allahabad  Development Authority, AIR 1995 All 418.

[11] Manhohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527.

[12] Robinson v. Pickering, [1881] 16 Ch D 660.

[13] Brojendra v.  Rup Lall, (1886) 12 Cal 515.

[14] Sankara v. Mahommad Gani, (1936) 59 Mad 746.

[15] Inayat Ullah v. Gurdit Singh, (1930) Lah 850.

[16] Y Venkateswara Rao v. T Venkata Subbayya, AIR 1980 AP 208.

[17] Bhola Nath v. Maharaj Raja Saheb, AIR 1984 All 60.

[18] Ibrahim Shah Mond v.Noor Ahmed, AIR 1984 Guj 126 (DB).

[19] UOI v. Bhuneshwar Prasad, AIR 1963 Pat `96.

[20] Tazmud v. Md. Ulairaja, AIR 1978 Gau 56.

[21] Ram Hoseiry v. JK Synthetics, AIR 1984 Del 350.

[22] Chitra v. Dhrubha Jyoti,  AIR 1988 Cal 98.

[23] Southern Roadways v. SM Krishnan, AIR 1990 SC 673.

[24] Bharat Law House v. Wadhwa Co. Pvt. Ltd., AIR 1988 Del. 68.

[25] Pioneer Hybrid International Inc. v. Pioneer Seeds Co., AIR 1989 NOC 120 (Del).

[26] M/s. Laxmi Marketing Corpn. V. Karnataka State Electronics Development Corpn. Ltd., AIR 1995 Kant 180.

[27] Frank Simoes Advertising Pvt. Ltd. v. Haqq Leasing and Industries, AIR 1988 Del 362.

[28] Mahadeo Salvaram Shelka v. Pune Municipal Corpn., (1995) 3 SCC 33.

1 COMMENT

  1. Hello,

    My plot had a small room for housing Generator during the layout development 10 years back. Tress passers have recently entered our property and repaired the room for their illegal activities. Can I file for an Injunction order if we’re not in peaceful possession of the property?

    Regards,
    Praveen

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