Temporary injunction
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This article is written by Deepali Kasrekar, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Table of Contents

Introduction

Have you ever imagined what happens if a person tries to demolish or infringes your property? What are the possible claims you can ask from the competent court to stop the demolition or infringement of your property? In law under civil trial, an Injunction is an order which can be passed by a court against one or more of the parties to refrain from doing, or less commonly to do, some specified act or acts.[1]

If a person moves to the Competent Court for seeking an Injunction Order does the Court grant all the claims of that person as granted by the Court? However, the process of granting an Injunction is to alter or maintain the “status quo” which completely depends upon the circumstance or grievances of the case. Parties to the case can grant Temporary, Permanent, or Mandatory Injunction. However, it is not a right of the parties but Injunction is one of the remedies which can be granted by the Competent Court on the equitable principle and the decision is discretionary one. Let us check what exactly the word Injunction means under the Specific Relief Act and procedure to be followed under Civil Procedure Code.

Injunction – meaning and object

An Injunction is an equitable remedy which is “a judicial process that compels a party to refrain from doing or to do a particular act or thing”. If any person disobeys the Order of Injunction passed by the Competent Court then there can be stiff monetary penalties and even imprisonment in certain instances. The primary purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated. However, Injunction can also be modified or dissolved if circumstances change in future. Section 94, 95 and Order 39 of the Civil Procedure Code precisely talks about the Injunctions and whereas, the temporary and perpetual injunctions are defined under section 36 to 42 of the Specific Relief Act.

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Kinds of injunction

Injunctions are given in many different kinds of cases. They can prohibit future violations of the law, such as trespass to real property, infringement of a patent, copyright or trademark etc. However, the Competent Court consider the duration and stage and accordingly grant the various types of Injunctions as follows: 

  • Prohibitory Injunction: The Competent Court can grant the Prohibitory Injunction to restrains or forbids a person from doing some act i.e. the order is passed as not to do any act. Prohibitory Injunction is also known as preventive or restrictive Injunction.

For Example: A and B are residing in the same Society. B wanted to trespass the A premises unlawfully.  A claim before competent court for Injunction to direct B that “B should not enter A premises”. Telling not to do a certain kind of act is a Prohibitory Injunction.

  • Mandatory Injunction: The Competent Court can grant the Mandatory Injunction to do some positive act or compels, commands or orders some person to do something in a particular manner. Section 39 of Specific Relief Act, 1963 does not define but categorically deals with the grant of Mandatory Injunction. In mandatory Injunction two elements has to be taken into consideration before granting Mandatory Injunction:
  • There must be an obligation on the part of the defendant to perform certain acts, the breach of which obligation, must be alleged by the plaintiff.
  • Relief must be enforceable by the court.

Example: “A” a tenant, without the permission of the Landlord has built a garden terrace which is an addition to the rented house. According to the leave and Licence agreement, “A” has to take prior permission of the Landlord to do any type of alterations/addition/changes to the rented house. So here “B” may seek a mandatory injunction to demolish the garden terrace which “A” has built without the permission of the Landlord.

So basically, Mandatory Injunctions are sometimes availed of as reliefs in the nature of ‘quia timet’, that is, in a proper case, mandatory injunction may be granted when there is a threat of infraction of the plaintiff’s right before the infraction has actually occurred.

  • Permanent or Perpetual Injunctions: Perpetual/Permanent Injunctions is granted by the courts to restrain the party forever from doing the act complained of. However, this perpetual or permanent injunction can only be granted after final hearing and decree has been passed by the court and this is completely decided on the merits of the case. Permanent or Perpetual Injunctions are governed by section 38 to 42 of Specific Relief Act, 1963. It determines the rights and liabilities of the parties finally.

For example: “A” has rented his Flat to “B” who is a tenant, and ‘B’ has failed to pay the rent since the last 2 months. ‘A’ may request the court to grant an injunction against the tenant’s continued use of the property and ask for eviction from A’s property.

Another example: “A” a father in a Hindu family intended to alienate the family property. B, C, and D, the legal heirs of A. B filed an injunction suit against A wherein A was restrained from alienating the family property more than his own share. It is not necessary for the B to wait until the waste (damages to house/property) is actually committed to bring an action for injunction but is sufficient if such an intention is expressed by the A.

  • Temporary Injunction: The temporary Injunction is been granted by the Court when the Defendant is about to the make some injury to the property of the Plaintiff or threatens the Plaintiff to dispossess the property or creates a thirty party interest in the property, then in such situation, the Court may grant a temporary injunction to restrain the Defendant to do such an act or make other order to prevent the dispossession of the plaintiff or prevent the causing of injury to the plaintiff in relation to any property in dispute or creating any thirty party rights in the property.

Temporary injunction is an interim remedy that is raised to reserve the subject matter in its existing condition and which may be granted on an interlocutory application at any stay of the suit. Its purpose is to prevent the suspension of the plaintiff’s rights. Section 94 of the CPC provides the supplemental proceeding so that Plaintiff can prevent this right, wherein Section 94 (c) and (e) of Code of Civil Procedure, the Court may grant a temporary injunction or make such other interlocutory orders. These are temporary injunction because its validity is until the further order passed by the court or until the final decree of the case.

Further the ad-interim injunction is granted during the pendency of the application and operates till the disposal of the application. In Ramrameshwari Devi vs. Nirmala Devi and Ors. Civil Appeal No. 49/2011[2]the Supreme Court held that, the Court should be extremely careful and cautious while granting ex-party ad interim injunctions or stay orders. Ordinarily a short notice should be issued to the Defendant/Respondent and only after hearing both the parties concerns Court can pass the appropriate orders.

Who may apply for temporary injunction and against whom injunction may be issued

An application for interim injunction along with affidavit may be made both Plaintiff or Defendant. Order 39 Rule (1) a, any party to the suit can apply for a Temporary Injunction.

An Injunction may be issued only against a party and not against a stranger or third party. Further, the injunction cannot be issued against the Court or Judicial Officers.

What are the basic principles of temporary injunction

Granting the temporary injunction is the exercise of the discretion which should be in judicial manner. No hard and fast rule can be laid down for guidance of the court to that effect. Therefore it is well settled that, before granting the Temporary Injunction, the Judge has to consider whether the Application is falling into below-mentioned categories/ has Plaintiff shown following points[3]:

  1. Prima Facie Case
  2. Irreparable Injury
  3. Balance of Inconvenience
  4. Other Factor

Let us understand the meaning and how all the basic ingredients are identified in below mentioned cases laws;

  • Is it a Prima Facie case: In every application, the Applicant/Plaintiff must make out a prima facie case in support of the right claimed by the Plaintiff. The Court should be pleased that there is a bonafide dispute between the parties wherein the investigation is needed. The Plaintiff is given the burden to prove and satisfy the court by leading evidence or witness that he has a prima facie case in his favour. The plaintiff should come to Court with clean Any material facts are suppressed by the Plaintiff then, in that case, the Plaintiff is not liable for any relief.

In Martin Burn Ltd vs. R.N.Banerjee 1958 AIR 79 SCR 514,[4] The Supreme Court held that a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence led in support of the same were believed. It does not involve the determination of the conflict of evidence or complex questions of fact and law, which call for detailed arguments.  

It further requires that the Plaintiff should come before the Court with clean hands. If he suppresses material facts and evidence then he is not entitled for the relief of injunction and further points of balance of convenience, irreparable injury need not be considered in such case.

In Prakash Singh vs. State of Haryana, 2002 (4) Civil L.J.71 (P.H.)[5] – The  Court has explained that Prima Facie does not mean that a Plaintiff/Applicant should have a full proof case in his favour which will succeed in all probabilities. It means that the plaintiff/applicant has a case which cannot be rejected summarily or dismissed out right. It raises consideration which can be considered on merits.

In Orissa State Commercial Transport Corporation Ltd. Vs. Satyanarayana Singh[6] – It was held that it is sufficient to show that the Plaintiff/Applicant has a fair question as to the existence of his right and it is necessary to maintain status quo till the matter is finally decided. 

  • Is there any Irreparable Injury: Further, the applicant must satisfy the court that he will suffer irreparable injury if the injunction is not granted. The Court is satisfied that the Plaintiff needs to be protected from the consequences of apprehended injury. An injury will be viewed as irreparable wherein there exists no certain monetary standard for calculating damages.

The expression irreparable injury however does not mean that there should be no possibility of repairing the injury. It only means that the injury must be a material one. i.e. which cannot be adequately compensated by damages. An injury will be regarded as irreparable where there exists no certain pecuniary standard for measuring damages.

The Supreme Court in Shanti Kumar Panda v. Shakuntala Devi, 03.11.2003[7], where the court held thus: ‘At the stage of passing an interlocutory order such as on an application for the grant of ad interim injunction under Rule 1 or 2 of Order 39 of the CPC, the competent Court shall have to form its opinion on the availability of a prima facie case, the balance of convenience and the irreparable injury __ the three pillars on which rests the foundation of any order of injunction.

In Best Sellers Retail India (P) Ltd. vs. Aditya Nirla Nuvo Ltd. – (2012 ) 6 SCC 792[8]the Hon’ble Supreme Court held that only prima facie case alone is not sufficient to grant injunction and the Court held that – “Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable.

  • Is there any Balance of Convenience: The Applicant must prove in this application that there is the balance of convenience must be in favour of the applicant i.e. the comparative mischief, hardship or inconvenience which is likely to be caused to the Applicant if the injunction is been refused.  The balance of convenience comes into the picture when there is doubt as to the adequate remedies in damages available to either party or both.

In Bikash Chandra Deb vs Vijaya Minerals Pvt. Ltd.: 2005 (1) CHN 582[9], the Hon’ble Calcutta High Court observed that issue of balance of convenience. The Court shall slender in favour of overview of the concept of balance of convenience, but does not mean and suggest that the balance would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be a one-sided affair.

In Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341[10] it was held that ‘Balance of convenience means comparative mischief or inconvenience. It can be likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to consider the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted.’

  • Other factors: The Court also considers some other factors before granting injunction. The relief of injunction may be refused on the ground of delay, laches or acquiescence or whether the applicant has not come with the clean hands or has suppressed material facts, or where monetary compensation is adequate relief.

Ground for granting temporary injunction from court

Under Section 95 of CPC, it is specifically mentioned that the temporary injunction may be granted in any suit wherein the Court is satisfied that there are sufficient grounds to grant the temporary injunction. If the Plaintiff fails to prove the sufficient grounds in his application then the Court may pass the suitable compensation to the defendant, in case the Defendant is claiming in his application.

Section 95 read with Order 39 Rule 1 and 2 empowers the Court to pass the temporary injunction[11]:

  • When there is a reasonable apprehension and danger of alienation or disposal of property by any party to the suit or by wrongful waste of the property; or
  • When there is an apprehension of alienation or disposal of the property to defraud creditors; or
  • Where Defendant threatens to dispossess the Plaintiff or otherwise causes injury to the interest of the Plaintiff or otherwise causes injury to the interest of Plaintiff in relation to the disputed property; or
  • When the Defendant is about to commit a breach of contract; or
  • Any other injury is likely to be caused or likely to be repeated; or
  • Where the Court is of the opinion that for protection of interest of any party to the suit or in the interest of justice injunction or stay is required and necessary.

Temporary Injunction when cannot be granted

  • To restrain any person from prosecuting a judicial proceeding at the institution of the suit, in which injunction is sought, unless restraint is necessary to prevent multiplicity of proceedings.
  • to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that, from which injunction is sought.
  • to restrain any person from applying to any legislative body,
  • to restrain any person from instituting or prosecuting any proceeding in a criminal matter,
  • to prevent the breach of a contract the performance of which could not be specifically enforced.
  • to prevent on the ground of nuisance, and act of which it is not reasonably clear that it will be a nuisance.
  • to prevent a continuing breach in which the plaintiff has acquiesced,
  • when equally efficacious relief can be certainly be obtained by any other usual mode of proceeding except in case of breach of trust,
  • when conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court.
  • when the plaintiff has no personal interest in the matter[12].

Conclusion

In view of the aforementioned, it can be determined that grant of temporary injunction cannot be requested by the party as a matter of right nor can be denied by the Court arbitrarily. The injunction is an equitable remedy and attracts the application of the maxim “he who seeks equity must do equity”. The Court has complete discretion to grant an injunction or to refuse it. The discretion to be exercised by the Court is shown by the principles mentioned hereinabove and depends on the facts and circumstances of each case. 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.

References

[1] https://www.britannica.com/story/what-is-an-injunction last visited on 14.07.2020

[2] https://indiankanoon.org/doc/183635/ last visited on 14.08.2020

[3] Code of Civil Procedure by S.C.Sarkar and P.C. Sarkar, 12th edition

[4] https://indiankanoon.org/doc/951956/ last visited on 14.08.2020

[5]https://indiankanoon.org/doc/1930680/#:~:text=Parkash%20Singh%20filed%20suit%20for,the%20superstructure%20raised%20by%20him. Last visited on 13.08.2020

[6] http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=513791472000#:~:text=SRI%20Satyanarayan%20Singh%2C%20Managing%20Director,Commerce%20Department%20(opposite%20party%20No. last visited on 13.08.2020

[7] https://indiankanoon.org/doc/337165/ last visited on 13.08.2020

[8] https://indiankanoon.org/doc/130617577/ last visited on 13.08.2020

[9] https://indiankanoon.org/doc/1741961/ last visited on 13.08.2020

[10] https://indiankanoon.org/doc/2409/ last visited on 13.08.2020

[11] CPC Approach of Trail Court by Adv. S.L. Deshpande and Adv. Jayant Jaibhave, edition 2016 

[12] http://mja.gov.in/Site/Upload/GR/Title%20NO.119(As%20Per%20Workshop% 20L is t %20title%20no119%20pdf).pdf last visited on 18.10.2020


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