In this article, Syeda Muneera Ali of KIIT Shool of Law discusses Meaning of Temporary and permanent injunction.
Understanding Injunctions
An injunction is a court order, that requires a person to do or abstain from doing an act that is necessary in terms of justice, and the absence of which would be contrary to good faith and good conscience. Basically, the grant of an injunction, aims to restore the violated rights of a party, whereby monetary or compensatory damages are insufficient. It follows the principles of Natural Justice and Equity. The concept of injunction, is a fairly simple one, and the relief granted, is a preventive one. Historically, the law of injunction finds its origin in English Jurisprudence, and comes from the French word ‘injungere’, which translates to ‘to join’. It finds its origins in Indian law through several Indian Statutes. To specify, the statutory provisions for injunctions, according to the required law, are present in CrPC (for Criminal cases), CPC and the Specific Relief Act (for Civil matters). Each of these statutes provide for some form of injunction, depending on the situation and the case.
An injunction rarely survives as an independent legal entity. In most circumstances, it comes as an addition to another remedy.
For example, if ‘A’ rents an apartment to ‘B’, who is a tenant, and ‘B’ fails to pay the rent, ‘A’ may request the court to grant an injunction against the tenants continued use of the property.
The granting of an injunction is a relative one. Basically, the approval for an injunction would vary from case to case and situation to situation, and at the discretion of the court. There are primarily two kinds of injunctions. They are: (a) Temporary Injunction and (b) Permanent Injunction.
Temporary Injunction
A temporary injunction is a provisional relief that aims to protect the subject matter in the existing condition, without the defendant’s interference or threat. It aims to protect the plaintiff from getting disposed off, or his property (subject matter) being destroyed or harmed, or from any injury to the plaintiff. The primary reason behind a temporary injunction is to protect the interests of an individual or entity, till the final judgement is passed. A temporary injunction, when granted, continues to remain for a specified period of time, or till the court deems fit.
When can Temporary Injunction be granted?
The temporary injunction may be granted, subject to three tests:
- whether the plaintiff has a prima facie case?
- whether the balance of convenience is in favour of the plaintiff? And
- whether the plaintiff would suffer an irreparable damage, if the injunction is not granted? Now, to explain these points, lets look into some illustrations:
ILLUSTRATION: ‘A’ is a merchant who has a food processing factory located in Bandra, in Mumbai, India. In front of his factory, one of the neighbouring factory workers (‘B’) started duping waste, which ultimately lead to the food getting spoilt. ‘A’ filed a suit against ‘B’, whereby the court agreed to a temporary injunction, which prevented ‘B’ from dumping more waste.
Now, using this illustration let us explain the three conditions:
WHETHER THE PLAINTIFF HAS A PRIMA FACIE CASE?
From this illustration, it is evident that ‘A’ is suffering from a significant problem, as it indirectly affects his livelihood. Therefore, it is prima facie evident that the grant of an injunction is important.
WHETHER THE BALANCE OF CONVENIENCE IS IN FAVOR OF THE PLAINTIFF?
In the above illustration, no matter who reads it, it is a common contention that the Plaintiff is suffering a damage, due to which the scales of justice in his side is heavier. Therefore, it is clear that the balance of convenience is tilted towards the Plaintiff.
WHETHER THE PLAINTIFF WOULD SUFFER AN IRREPARABLE DAMAGE IF THE INJUNCTION IS NOT GRANTED?
In a situation where the court would have disagreed to grant the temporary injunction in favour of the Plaintiff, the food products in his factory would be destroyed, thereby affecting his income and causing great loss. Therefore, it is clear that the Plaintiff would have suffered an irreparable damage to his goods.
WHAT IS A PERMANENT INJUNCTION?
A permanent injunction (also known as perpetual injunction) is one that is delivered at the time of the final judgement, and therefore is more often than not, prevalent for a longer period of time. In this scenario, the Defendant is perpetually restrained from the commission of an act, or the abstinence from the commission of an act, which would defeat the interests of the Plaintiff.
WHEN CAN A PERMANENT INJUNCTION BE GRANTED?
Section 38 of The Specific Relief Act, 1963 provides the situations where Perpetual Injunctions can be granted, and states that:-
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens 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 trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
To simplify these points, let us use some illustrations:
Section 38(1): Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
Ram is a tenant at Shyam’s flat. Shyam has specifically asked Ram to not displace the prayer room, as it had a gold statue of a deity. Ram wilfully disobeyed and tried to remove the statue.
Here, the court may grant a permanent injunction, in order for Ram to fulfil the request of Shyam.
Section 38(2): When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
Aryan is the co-founder of a company X. He breaches the clauses of the company rules and therefore, creates a risk of potential damage to the company’s reputation. Ayesha is the co-founder of company X too. She may attain an injunction to prevent Aryan from doing an act that would eventually aid to the destruction the reputation of the company.
Section 38(3): When the defendant invades or threatens 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 trustee of the property for the plaintiff;
Seema owns a farmhouse in Dheradun. Emily is a trustee of the property and engages in some illegal activities. Here, Seema may seek an injunction to prevent further illegality.
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
Ayush has a three year tenancy lease at Dev’s house. Upon the expiry of such lease, Dev wanted to move back to his house. However, Ayush refused to leave or pay rent. Dev may seek an injunction as there may be a risk of him being homeless and suffer huge losses.
(c) where the invasion is such that compensation in money would not afford adequate relief;
Arjun, Karan’s school friend rents an office space from him, to set up an office. Being his friend Karan agrees to the same. However, Arjun refuses to pay rent and does not clear his dues. There is a lag of 8 months, with leads to heavy losses for Karan. He is entitled to seek an injunction in order to stop Arjun from using the office space.
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
Arya has 7 tenants, out of which, 5 tenants have failed to pay the rent for 5 months, consecutively. She files a suit against all of them, with the same cause of action. The court may allow an injunction, in order to prevent multiple proceedings, simultaneously.
MAJOR DIFFERENCES BETWEEN PERMANENT AND TEMPORARY INJUNCTIONS
A temporary injunction is granted for a specified period of time, or as adjudged by the court. It may be granted at any point during the suit.
A permanent injunction, on the other hand, is granted by the decree of the court, and upon the examination of the facts and merits of the case.
Order 39 (Rules 1 to 5) of the Civil Procedure Code, 1908, governs temporary injunctions.
Whereas, permanent injunctions are governed by sections 38 to 42 of The Specific Relief Act, 1963.
A temporary injunction is non-conclusive. Basically, it is a temporary order, rather than a permanent solution.
A permanent injunction, on the other hand, deals with the finality of a judgement, thereby providing a conclusive and long term solution to the dispute at hand.
A temporary injunction may only focus on the Plaintiff’s side of the case and therefore may be one-sided. However, it is important to understand, that this is not always so.
A permanent injunction, on the other hand, focuses on the Plaintiff as well as the Defendant. It hears both parties, and then provides a solution.
A temporary injunction, being temporary in nature, may be revoked by the court that passes the injunction order.
However, a permanent injunction is non-revocable by the court that decides to pass such order. However, it may be revoked by an appellate or higher court.
A lack of immediate response or request by the Plaintiff may lead to a dis-approval of the grant of an injunction order.
On the other hand, a permanent injunction order allows the parties to explain, elaborate and provide for details at a later and more relaxed pace, provided there are sufficient and valid grounds for the same.
A temporary injunction is simply an order by the court.
A permanent injunction is a decree (i.e., an official order by a court of law).
CONCLUSION
An injunction is a preventive relief that tries to look into the interests of both the parties. It tries to create a situation, where one party does not harm or interfere into the rights and authorities of the other party. Though an injunction is not a self-dependent relief, it is often very important for the protection of rights. Both permanent and temporary injunctions have their own perks and privileges, that are unique to every situation. It is essential to understand one’s situation and then move forward with the relief that suits them best. While doing the same, it must always be kept in mind that an injunction order is nor a right in itself, however, its denial is in the sole discretion of the courts.
SAMPLE FORMAT OF A TEMPORARY INJUNCTION ORDER
(Title)
Upon motion made unto this Court by……… Pleader of [or Counsel for] the plaintiff A. B., and upon reading the petition of the said plaintiff in this matter filed [this day] [or the plaint filed in this suit on the .. ……… day of………. or the written statement of the said plaintiff filed on the…….. day of………] and upon hearing the evidence of…. ….. and……… in support thereof [if after notice and defendant not appearing: and, and also, the evidence of……… as to service of notice of this motion upon the defendant CD.]: This Court doth order that an injunction be awarded to restrain the defendant CD., his servants, agents and workmen, from pulling down, or suffering to be pulled down, the house in the plaint in the said suit of the plaintiff mentioned [or in the written statement, or petition, of the plaintiff and evidence at the hearing of this motion mentioned], being No. 9, Oilmongers Street, Hindupur, in a Taluk of……… and from selling the materials whereof the said house is composed, until the hearing of this suit of until the further order of this Court.
Dated this……… day of……… 19….
Judge
[Where the injunction is sought to restrain the negotiation of a note or bill, the ordering part of the order may run thus:-]
……… to restrain the defendant……… and……… from parting without of the custody of them or any of them or endorsing, assigning or negotiating the promisory note [or bill of exchange] in question, dated on or about the ………, etc., mentioned in the plaintiff s plaint [or petition] and the evidence heard at this motion until the hearing of this suit, or until the further order of this Court.
[In Copy right cases]
……to restrain the defendant CD., his servants, agents or workmen, from printing, publishing or vending a book, called…… or any part thereof, until the, etc.
[Where part only of a book is to be restrained] … .to restrain the defendant CD., his servants, agents orworkmen, from printing, publishing, selling or otherwise disposing of such parts of the book in the plaint [or petition and evidence, etc.] mentioned to have been published by the defendant as hereinafter specified, namely, that part of the said book which is entitled ….. and also that part which is entitled….
[or which is contained in page…… to page …. both inclusive] until…… etc. [In Patent cases] ………
to restrain the defendant C. D., his agents, servants and workmen, from making or vending any perforated bricks [or as the case may be] upon the principle of the inventions in the plaintiff’s plaint [or petition, etc., or written statement, etc.,]
mentioned, belonging to the plaintiffs, or either of them, during the remainder of the respec-tive terms of the patents in the plaintiffs plaint [or as the case may be] mentioned, and from counterfeiting, imitating or resembling the same inventions or either of them, or making any addition thereto, or substraction therefrom, until the hearing, etc.
[In cases of Trade marks]
……… to restrain the defendant C.D., his servants, agents or workmen, from selling, or exposing for sale, or procuring to be sold, any composition or blacking [or as the case may be] described as or purporting to be blacking manufactured by the plaintiff A.B., in bottles having affixed thereto such labels as in the plaintiffs plaint [or petition, etc.] mentioned, or any other labels so contrived or expressed as, by colourable imitation or otherwise, to represent the composition or blacking sold by the defendant to be the same as the composition or blacking manufactured and sold by the plaintiffA.fi., and from using trade-cards so contrived or expressed as to represent that any composition or blacking sold or proposed to be sold by the defendant is the same as the composition or blacking manufactured or sold by the plaintiffA.fi., until the, etc.
[To restrain a partner from in any way interfering in the business]
to restrain the defendant CD., his agents, and servants, from entering into any contract, and from accepting, drawing, endorsing or negotiating any bill of exchange, note or written security in the name of the partnership firm of fi. and D., and from contracting any debt, buying and selling any goods, and from making or entering into any verbal or written promise, agreement or undertaking, and from doing, or causing to be done, any act, in the name or the credit of the said partnership-firm of B. and D., or whereby the said partnership-firm can or may in any manner become or be made liable to or for the payment of any sum of money, or for the performance of any contract, promise or undertaking until the, etc.
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please write about different kinds of injunctions covered under order 39 rule 1 & their value in law without reference to specific relief act
Great work and nicely compiled easy comprehension, thanks!