In this blog post, Nimisha Srivastava, a student of Gujarat National Law University, Gandhinagar, writes about temporary injunctions and explains when such orders can be passed by the court.
Interim or interlocutory orders are those orders passed by a court during pendency of a suit or proceeding which do not determine the substantive rights and liabilities of parties with respect to subject matter of the suit or proceeding. Latin maxim “Actus curiae neminem gravabit” which means “an act of the court shall prejudice no one” explains the rationale behind granting such orders. This principle can be found in Section 94(e) of the Civil Procedure Code (hereinafter referred to as the code) which says that ‘In order to prevent the ends of justice from being, defeated the Court may, if it is so prescribed,- (e) make such other interlocutory orders as may appear to the Court to be just and convenient.
Interim orders are necessary to deal with and protect rights of the parties in the interval between the commencement of the proceedings and final adjudication. They prevent abuse of process during the pendency of proceedings. Such interim orders may be summarized as follows:
- Commissions: Order 26
- Arrest before judgment: Order 38
- Attachment before judgment: Order 38
- Temporary injunctions: Order 39
- Interlocutory orders: Order 39
- Receiver: Order 40
- Security for costs: Order 25
- Payment in court: Order 24
It is a well settled principle of law that interim relief can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his right in a suit or any other proceeding. Therefore, the court undoubtedly possesses the power to grant interim relief during the pendency of the suit.
The law of injunction in India has its origin in the Equity Jurisprudence of England from which we have inherited the present administration of law. From the aforesaid historical background, it is manifest that the origin of the power to grant injunction is from equity, hence the exercise of the discretion by the Courts is to be governed mainly by equitable considerations. Injunction is stated in Order 39, Rule 1-5,
An injunction is a judicial process whereby a party is required to do, or to refrain from doing, any particular act. It is a remedy in the form of an order of the court addressed to a particular person that either prohibits him from doing or continuing to do a particular act (prohibitory injunction); or orders him to carry out a certain act (mandatory injunction).
Temporary injunction restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further orders of the court. It is regulated by the provisions of Order 39 of the Code of Civil Procedure, 1908 and may be granted at any stage of the suit. It remains in force till disposal of the suit or until it is revoked and ad interim temporary injunction remains in force till disposal of the petition for temporary injunction or until it is revoked .The provisions of temporary injunction as well as ad interim temporary injunction is contained in Rule 1 of Order 39 of the Civil Procedure Code.
Case: State of Orissa vs. Madan Gopal[1], an injunction is a judicial process whereby a party is required to do or to refrain from doing any particular act. Temporary injunction is mode of granting preventive relief by the court at its discretion. A temporary injunction is also known as interim injunction.
In Agricultural Produce Market Committee Case[2], the Hon’ble Apex Court has held that “a temporary injunction can be granted only if the person seeking injunction has a concluded right, capable of being enforced by way of injunction.”
Order 39 Rule 1 says that temporary injunction can be granted when:
- a) any property in dispute in a suit is in danger of being wasted , damaged or altered by any party to the suit , or wrongfully sold in execution of a decree; or
- b) the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors;
- c) the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff relating to any property in dispute in the suit .
In such cases, the court may, by order, grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to property in dispute in the suit as the court thinks fit, until the disposal of the suit or until further orders.
Rule 2:
According to the Rule 2 of CPC, temporary injunction may be granted where the defendant is about to commit a breach of contract, or other injury of any kind. Where the court is of the opinion that the interest of justice so requires, it may grant temporary injunction. Where the court is of the opinion that the very object of granting temporary injunction would be defeated by delay, it can grant an interim injunction in favour of the applicant. Chartered High Courts also have inherent power under their general equity jurisdiction to grant an injunction restraining a party from proceeding with a suit pending in another court.
To grant the order of temporary injunction is purely a discretionary power of the court .This discretion is to be exercised according to the established judicial principles and judicially. The following principles are laid down for consideration by the court while granting temporary injunction:
- Prima facie case
- Balance of convenience
- Irreparable injury.
Prima facie case:
The expression “prima facie” means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to contrary is disregarded. The Supreme Court in Marin Burn Ltd. v. R.N. Banerjee[3] 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 which is led in support of the same were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and as to whether that was the only conclusion which could be arrived at on that evidence.’
In Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co. Ahmedabad [4] wherein it was held that “Prima facie case” means that the Court should be satisfied that there is a serious question to be tried at the hearing, and there is a probability of Plaintiff obtaining the relief at the conclusion of the trial on the basis of the material placed before the Court. “Prima facie case” is a substantial question raised bona fide which needs investigation and a decision on merits. The Court, at the initial stage, cannot insist upon a full proof case warranting an eventual decree. If a fair question is raised for determination, it should be taken that a prima facie case is established. The real thing to be seen is that the Plaintiff’s claim is not frivolous or vexatious.’’
Uttara Bank vs. Macneill & Kilburn Ltd.[5]: The burden is on the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favour of him. It is to be understood that relief of temporary injunction cannot be sought for some right which would arise in future. Similarly, an injunction cannot be obtained to restrain a party from filing a suit. In Seema Arshad Zaheer Case[6], the Hon’ble Supreme Court has indicated the salient features of prima facie case as under: “The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff’s rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff’s rights is compared with or weighed against the need for protection of the defendant’s rights or likely infringement of the defendant’s rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff’s conduct is free from blame and he approaches the court with clean hands.” However, in the Best Sellers Retail India (P) Ltd. case, the Hon’ble Supreme Court observed that prima facie case alone is not sufficient to grant injunction and 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.”
Balance of convenience:
It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. The court should issue an injunction where the balance of convenience is in favour of the plaintiff and not where the balance is in favour of the opposite party. The meaning of “balance of convenience” in favour of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiffs. The inconvenience caused to the plaintiff would be granted than that which would be caused to the defendants if an injunction is grated but the suit is ultimately dismissed. Although it is called “balance of convenience”, it is really the “balance of inconvenience”, and it is for the plaintiffs to show that the inconvenience caused to them would be granted than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it. In granting a temporary injunction the Court should consider,
Firstly- The plaintiff makes out a prima facie case;
Secondly- That the plaintiff will suffer irreparable loss if the injunction prayed for is not granted; and
Thirdly- The balance of convenience lies in favour of the plaintiff.
Case: MT. AymumNessa v. md. Obaidul haque[7], temporary injunction should be refused in the absence of the above mentioned three principles. In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh[8], observed: ‘Balance of convenience’ means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff, if temporary injunction is refused, would be balanced and compared with that to the defendant if it is granted. If the scale of inconvenience leans to the side of the plaintiff, then interlocutory injunction alone should be granted.
In Antaryami Dalabehera v. Bishnu Charan Dalabehera[9], as this point, it was held that balance of convenience, which means, comparative mischief for inconvenience to the parties. The inconvenience to the petitioner if temporary Injunction is refused would be balanced and compared with that of the opposite party, if it is granted.
In Bikash Chandra Deb v. Vijaya Minerals Pvt. Ltd.[10]: the Hon’ble Calcutta High Court observed that issue of balance of convenience, it is to be noted that the Court shall lean in favour of introduction of the concept of balance of convenience, but does not mean and imply 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.
Irreparable injury:
In Dalpat Kumar & Anr. v. Prahlad Singh & Ors.[11], the Supreme Court explained the scope of aforesaid material circumstances, but observed as under: “The phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.”
In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh[12], the court observed: ‘Irreparable injury’ means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused.
Footnotes:
[1] 1952 AIR 12, 1952 SCR 28
[2] Agricultural Produce Market Committee Vs. Girdharbhai Ramjibhai Chhaniyara , AIR 1997 SC 2674
[3] 1958-I L.L.J. 247
[4] 1995(5) SCC 545
[5] 33 DLR
[6] Seema Arshad Zaheer & Ors Vs Municipal Corporation of Greater Mumbai & Ors., (2006) 5 Scale 263
[7] 35 DLR
[8] (1974) 40 Cut LT 336
[9] 2002 I OLR 531
[10] 2005 (1) CHN 582
[11] AIR 1993 SC 276
[12] (1974) 40 Cut LT 336
