TEMPORARY INJUNCTIONS: ORDER XXXIX
INTRODUCTION: Every court is constituted for the purpose of administering justice between the parties and therefore, must be deemed to possess all such powers as may be necessary to do full and complete justice to the parties before it. It is a well stated principle of law that an 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 rights in a suit or any other proceeding therefore, a court undoubtedly processes the power to grant interim relief during the pendency of the suit. An injunction is an equitable remedy in the form of a court order that requires a party to do, or to refrain from doing, certain acts. It is an extraordinary remedy that courts utilize in special cases where preservation of the status quo or taking some specific action is required in order to prevent possible injustice. For example, in a custody case, an injunction may ma y be used to prevent a party from removing a child from the country. Injunctive relief is an equitable remedy granted when money damages are not able to compensate the plaintiff's violation of rights if an injunction is not granted. Failure to comply with a notice of an injunction is punishable by being held in contempt of court. Emergency injunctions that are in effect only a short time are called temporary restraining orders. Courts can also issue preliminary injunctions to take effect immediately and effective until a decision is made on a permanent injunction, which can stay in effect indefinitely or until certain conditions are met. CASE: State of of Ori ssa vs. vs. M adan Gopal, AI R (1952) (1952)
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 from doing or continuing to do a particular act (prohibitory injunction); or orders him to carry out a certain act (mandatory injunction).1
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1. Halsbury’s Law of England(4 edition) Vol. 24, para 901
Under India Legal System, the law relating to injunction has been provided in the Specific Relief Act, 1963. Injunction is categorized in two form i.e. Permanent Injunction and Temporary Injunction. Section 37 of Specific Relief Act, 1963 provides that "temporar y I nj unction ar e such as are to conti nu e un ti l a specif ied time, or u nti l th e f ur ther or der of the cour t, and they may be granted at any stage of a sui t." The procedure for seeking temporary injunction has
been provided under Order XXXIX of the Code of Civil Procedure, 1908. However, an injunction being discretionary equitable relief cannot be granted when equally efficacious relief is obtainable in any other usual mode or proceeding.2
DEFINITION: According to order 39 of the Code of Civil Procedure, 1908 any order made temporarily prohibiting the defendant not to alienate, or to change or to damage the property in dispute during the pendency of the suit is called temporary injunction. Thus temporary injunction is regulated under the provisions of rules 1-5, order 39 of the Code of Civil Procedure, 1908.
BARE PROVISION: . Cases in whi ch temporary i nj un ction may be grant ed 1 Where in any suit it is proved by affidavit or otherwise (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to[defrauding] his creditors, (c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any properly in dispute in the suit,] the Court may be 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 dispossession of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until tile disposal of the suit or until further orders.
2.www.mondaq.com/india/x/257586/Civil+Law/LAW+OF+INJUNCTION+TEMPORARY+IN JUNCTION
. I nj unction to restrain repetiti on or contin uance of br each 2 (1) In any suit for restraining the defendant from committing a breach of' contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgement, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract, or injury of a like kind arising cut of the same contract or relating to the same property or right. (2) The Court may be order grant such injunction, on such terms as to the of the durations injunction, keeping an account, giving security, or otherwise, as the Court thinks fit. [***] 2A . Consequence of di sobedience or br each of i nj un ction
(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release. (2) No attachment made under this rule shall remain in force for more than one year, at the end of which time if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.] 3 . Befor e grant in g inj un ction, Cour t to dir ect notice to opposite party
The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be give to the opposite party: [Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with(i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and
(iii) copies of documents oil which the applicant relies, and (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.] 3A . Court to dispose of application for in jun ction withi n th ir ty days
Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.] . Order f or i nj un ction may he discharged, var ied or set abide 4 Any order for an injunction may be discharged, or varied, or set aside by the Court, on an application thereto by any party dissatisfied with such order : [Provided that if in an application for temporary injunction or in any affidavit supporting such application a party his knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is riot necessary so to do in the interests of justice : Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.] . I nj unction to corporation bindin g on its off icer 5 An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation who se personal action it seeks to restrain.
Object of temporary injunction: The purpose of granting interim relief is the preservation of property in disp ute till legal rights and conflicting claims of the parties before the court are adjudicated. The underlying object of granting temporary injunction is to maintain and preserve status quo at the time of institution of the proceedings and to prevent any change in it until the final determination of the suit. It is in the nature of protective relief granted in favour of a party to
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prevent future possible injury. The need for such protection, however has to be judged against the corresponding need of the defendant to be protected against injury resulting from ex ercising his own legal rights. The Court must weigh one need against another and determine where the balance of convenience lies and may pass an appropriate order in exercise of its discretionary powers.4
Who may apply? The relief of temporary injunction is generally prayed for by the plaintiff. But in an appropriate case the defendant may also pray for and obtain an order of temporary injunction against the plaintiff. Thus in the plaintiffs suit for specific performance of contract of a transfer, on the prayer of the defendant, the plaintiff may be restrained from raising structure on the suit land by temporary injunction. The defendant can apply for temporary injunction against the plaintiff only if the relief claimed by the defendant arises out of the plaintiff‟s cause of action or is incidental thereto. Thus, injunction restraining the plaintiff from parting with possession of vacant portion of the disputed premises to the purchaser until the disposal of the appeal may be granted. It is not the plaintiff alone who can apply for an interim injunction. A defendant also may make 5
an application for grant of an injunction against the plaintiff.
Against whom injunction may be issued 6
An injunction may be issued only against a party and not against a stranger or a third party. It 7
also cannot be issued against a court or judicial officer. Normally, injunction can be granted 8
against persons within the jurisdiction of the court concerned.
3. Polins v. Gray, (1879) 12 Ch D 438. 4.Gujrat Bottling Co. Ltd. V. Coca Cola Co., (1995) 5 SCC 545. 5.Or. 39 R.1(a) 6. L.D Meston School Society v. Kashi NAth, AIR 1951 All 558 7. Ibid 8.P. Venketachalam v. Rajagopala Naidu, AIR 1932 Mad 705.
Grounds: According to Order 39 Rules 1& 2 of the CPC – Temporary injunction may be granted by the Court in the following cases1. where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree;9 or; 2. where the defendants threatens, or intends to rem ove or dispose of his property with a view to defrauding his creditors;10 or 3. where the defendants threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit;11 or 12 4. where the defendant is about to commit a breach of contract, or other injury of any kind; or 5. where the court is of the opinion that the interest of justice so requires.13
Principles governing grant of injunction: The power to grant a temporary injunction is at the discretion of the court. This discretion, however, should be exercised reasonably, judiciously and on sound legal principles. Injunction should not be lightly granted as it adversely affects the other side. The grant o f injunction is in the nature of equitable relief, and the court has undoubtedly power to impose such terms and conditions as it thinks fit. Such conditions, however, must b e reasonable so as not to make it impossible for the party to comply with the same and thereby virtually denying the relief which he would otherwise be ordinarily entitled to. Generally, before granting the injunction, the court must be satisfied about the following aspect.
A relief of temporary injunction cannot be granted just for the mere asking of it after filing of a suit without adverting to the principles governing the grant of temporary injunction. Before an order of temporary injunction may be passed, the court must be satisfied that the applicant has a prima facie and arguable case to go into trial that the applicant shall suffer irreparable injury or loss unless the injunction is granted and that the balance of inconvenience is in favour of the applicant.
9. Or. 39 R. 1(a). 10.. R. 1(b). 11.R. 1(c). 12.R. 2(1). 13. Ss. 94(c), 151.
Where the applicant fails to make out a prima facie case, the question of irreparable injur y and balance of inconvenience does not arise and non-consideration of the points of irreparable loss and balance of inconvenience is not material In the case of a temporary injunction, the applicant must show (a) a prima facie case in support of the right claimed; (b) an actual or threatened violation of that right; (c) productive of irreparable or at least serious damage; (d) his conduct must be such as not to disentitle him to assistance but it should be fair and honest and in particular there must be no acquiescence or delay; (e) there must be a greater convenience in granting than refusing the injunction, and (f) equally efficacious relief must not be obtainable by any other usual mode or proceeding. (a)
Prima Facie Case: The first rule is that the applicant must make out a prima facie case in support of the right claimed by him. The existence of a prima facie right and infraction of such right is a condition precedent to the grant of temporary injunction. The burden is on the applicant to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favour. The case must be established with sufficient material or proved by affidavit. The view that to establish a prima facie case it is not necessary to file documents or papers and it can be spelt out in the plaint is not correct. Where the impugned order of ad interim injunction does not show that there is a prima facie case in favour of the plaintiffs, the order suffers from nonapplication of judicial mind. In explaining what is meant by prima facie case, the High Court Division observed that it is a well-established principle of law that in order to get an order of temporary injunction, the plaintiff has to show that he has a good prima facie case meaning thereby that a serious question of law is to be tried in the suit. The court must be satisfied that there is a bonafide dispute raised by the applicant, that here is a strong case for trial which needs investigation and a decision on merits and that on the facts before the court there is a probability of the applicant being entitled to the relief claimed by him.
„Good prima facie case‟ has been explained to mean that a serious question is to be tried in the suit and in the event of success, if the injunction be not granted the plaintiff would suffer irreparable injury. Case: U ttara Bank vs. Macneil l & Ki lbur n L td. 33 DL R .
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 Explaining the ambit and the scope of the connotation „prima facie‟ case in M artin Burn Ltd. 14 A prima facie case does not mean a case proved to the hilt but a case which VS. Baner jee,. 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 not “
whether that was the only conclusion which could be arrived at on that evidence. It may be that the tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. ”
In Seema Arshad Zaheer Case
15
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 plead ed, 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 no t 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." (b)
Irreperable injury: The existence of the prima facie case does not entitle the applicant for a temporary injunction.16 The applicant must further satisfy the court about the second condition by showing that he will suffer irreparable injury if the injunction as prayed is not granted, and that there is no other remedy open to him by which he can protect himself from the consequences of apprehended injury. “Irreparable injury” simply means that the injury must be one that cannot be adequately compensated for in damages. The mere fact that if no injunctions was granted the party would be open to criminal prosecution does not mean that irreparable injury would be non issue of an injunction. 17
However, in Best Sell ers Retail I ndi a (P) L td. Case , the Hon'ble Supreme Court observed that prima facie case alone is not sufficient to grant injunction and held that: "Yet, th e settl ed pri ncipl e of law i s that even where prim a f acie case is in favour of the plainti ff , the Court wil l r efu se temporar y inj unction i f th e in jur y suf fered by the plainti ff on account of r ef usal of temporary inj un ction was not ir reparable."
14.AIR 1958 SC 79. 15. Seema Arshad Zaheer & Ors. Vs, Municipal Corporation of Greater Mumbai & Ors. – (2006) 5 Scale 263 16. CCE v. Dunlop India Ltd., (1985) SCC 260
18
In the leading case of American Cyanamid Co. v. Ethicon Ltd., the House of Lords has rightly pronounced the principle thus: The governing principle is that the court should first consider whether, if the plaintiff were
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to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiffs claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff‟s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.
”
An applicant is not entitled to an order of temporary injunction merely by making out a prima facie case. He must also show that he shall suffer irreparable loss or injury not commensurable in monetary terms unless the other party is restrained. The court must be satisfied that refusal to issue injunction would result in an irreparable loss or injury and he needs be protected from the consequence of the loss or injury. Where both sides are exposed to irreparable injury pending trial, the court has to strike a just balance.19
17. AIR (2012 ) 6 SCC 792. 18.(1975) 1 All ER 504. 19. Mahadeo Savlaram Shelke v. Pune Municipal Corpn., (1995) 3 SC 33.
(c)
Balance of inconvenience: The applicant must show a clear necessity for affording
protection to his alleged right, which would otherwise be seriously impaired. Before granting temporary injunction, the court must also be satisfied that the balance of inconvenience is in favour of the applicant. It means that the court is to be satisfied that the comparative mischief, hardship or inconvenience which is likely to be caused to the applicant by refusing the injunction will be greater than that which is likely to be caused to the other party by granting it. Temporary injunction likely to cause mischief cannot be granted when it is clear that grant of temporary injunction will tell upon the internal management of an educational institution. In matters of service the court has also to keep in view the difficulties and problems that are likely to be created in the matter of administration in a particular office or organisation before allowing the prayer for temporary injunction. The court while exercising the discretion should be guided by the sound judicial principles and should attempt to weigh substantial mischief or injury likely to be caused to the applicant, if the injunction is refused and compare it with that which is likely to be caused to the opposite party if the injunction is granted. On weighing the conflicting probabilities, the court will grant the relief if in its opinion the balance of inconvenience is in favour of the applicant, e.g. if the mischief to the applicant is greater than the mischief to the opposite party. The balance of inconvenience rule has no place where the applicant‟s right is doubtful or where he can be compensated in money terms. No injunction will be issued when on consideration of the balance of inconvenience it is found that it would be oppressive to the defendant to issue the injunction. The principle of balance of inconvenience applies when the scales are evenly balanced. No injunction should be granted which will interfere with development work with aid. In a case where national interest outweighs personal interest/gain or profit or in other words, where national loss because of an order of injunction would outweigh the individual loss, the prayer for injunction is certainly merit less.
Discretion of the Court According to section 22 of S.R. Act, the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
The grant of temporary injunction is discretionary with the court and a party cannot get the relief as a matter of course. It shall not be granted merely because it is lawful to do so. It is a power of extraordinary nature and the court is to exercise the power with caution and great circumspection. Where the trial court as also the appellate cou rt did not grant injunction and in the revision filed three months after the order of the appellate court the High Court Division granted interim injunction ex pane the Appellate Division held it to be not a proper exercise of the discretion. The court shall grant the relief only when it is satisfied that the applicant will suffer irreparable loss or injury if the other party is not restrained as prayed for. The court should always be willing to extend its hands to protect a citizen who is being wronged or is being deprived of any property without due course of law, but at the same time the judicial proceedings cannot be used to protect or perpetuate a wrong committed by a person who approaches the court. The discretion has to be exercised on sound judicial principles and not arbitrarily. In Dalpat Kumar v. Prahl ad Singh,
20
the Supreme Court stated, The court while granting “
or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, 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. If on weighing competing po ssibilities or probabilities of likelihood of injury and if the court considers that, pending th e suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit 21.
Grant of Injunction: 21 In Agr icul tur al Produce M ark et Committee Case , 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." Grant of injunction on terms
The court has power to impose reasonable terms as a condition when granting injunction. 20. (1992) 1 SCC 719. 21. AIR 1997 SC 2674
Thus it may call upon the plaintiff to undertake that he will abide by any order which the court may make as to damages. If the plaintiff is a foreign firm and do not cam; on business in this country, the court may reasonably put on terms. Against whom injunction can be granted.
An injunction can be issued only against party to the suit and not against a stranger or against a court. In a proper case an injunction may be issued even against a person outside the jurisdiction of the court. No injunction will ordinarily be issued against government officer‟s bona fide exercising rights or alleged rights in the course of their duty, or against public bodies under similar circumstances. Against whom an order of injunction is binding
Ordinarily, an order of injunction binds the parties to the suit. It is also binding on the agent or servant of the defendant.‟ Persons who were not party to the suit nor were named in the injunction order cannot be proceeded against for violation of the order of injunction. But a person who is aware of an order of injunction is bound to obey even though he was not a party to the suit when it affects the result of the earlier order. Thus when the Appellate Division passed an order for maintenance of status quo in respect of composition of the Board of Directors of a bank and when a copy of the order was sent to Bangladesh Bank by that bank, Bangladesh Bank was bound to honour the order of the Appellate Division.
Inherent Power to grant injunction: Rule 1 of Order 39, no doubt, enumerates circumstances in which a court may grant interim injunction. It, however, nowhere provides that no temporary injunction can be granted by the court unless the case falls within the said provision. Hence, where the case is not covered by Order 39, interim injunction can be granted by the court in exercise of inherent powers under Section 151 of the Code.22
22. Manohar Lal Chopra v. Seth hiralal, AIR 1962 SC 527
Notice: Rule 3 The court shall before granting an injunction, give notice to the opposite party, except where it appears that the object of granting the injunction would be defeated by delay.23 But the proviso added by the Amendment Act of 1976 lays down that when an ex parte injunction is proposed to be given, the court has to record the reasons for coming to the conclusion that the object of granting injunction would be defeated by delay. In such a situation the court shall order the applicant to send the copy of the application and other documents immediately to the opposite party. In such a case, the court shall make an endeavour to finally dispose of the application within 30 days from the date on which the ex parte injunction was granted. Where the court finds it difficult to dispose of the application within the period of 30 days, reasons are required to be recorded.24 An order of injunction may be discharged , varied or set aside by the court on an application being made by any party dissatisfied with such order, or where such discharge, variation or setting aside has been necessitated by change in circumstances, or where the court is satisfied 25
that such order has caused undue hardship to the other side.
Ex Parte Injunction: Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 provides for ex-parte temporary injunction in the cases of extreme urgency. However, Rule 3 does not stipulate a separate application for ex-parte injunction rather such an application should be a part of an application for a bi-parte temporary injunction and in such application an urgency shall be shown by the applicant so as to warrant the passing of an ex-parte injunction/order. However, such an order has to be temporary. The essential safeguards in this regard are briefly stated as und er:
The matter should be urgent and overwhelming. The other elements for the grant of temporary injunction order as explained in the Gujarat Bottling case shall be existing. The court shall record reasons for the grant of ex parte order. It is the duty of the applicant to serve a notice to the other party after the order has been passed and such notice shall be coupled with a copy of the application, the plaint, the affidavit and any other document which were filed in support of the application. Upon serving such notice, the applicant shall on the same day of the order or on the next day file an affidavit of his having served such a notice. Under Order XXXIX Rule 3A of the Code of Civil Procedure, 1908, it is a mandate for the Court that after passing such an ex-parte order, it shall continue with the bi-parte proceedings and shall dispose of the application within 30 days. However, the said 30 days period is not the upper limit for ex-parte orders i.e. the ex-parte order will not get
automatically vacated upon the lapse of 30 days rather it can further be extended beyond 30 days in extreme cases. 26
The Hon'ble Supreme Court in M organ Stanl ey Case , inter alia observed the under mentioned guidelines for grant of temporary injunction besides others:
Where irreparable or extremely serious injury will be caused to the applicant, ex-parte order can be passed; The court shall examine the time when the plaintiff got notice of the act complained; If the plaintiff has acquiesced to the conduct o f the respondent then ex-parte temporary injunction shall not be passed; The applicant shall be acting in utmost good faith; and Such an order shall be for a temporary period.
Recording of reasons: When the court purposes to grant ex parte injunction without issuing notice to the opposite party, proviso to Rule 3 enjoins the court to record reasons. The requirement of recording reasons is not a mere formality but a mandatory requirement.
Imposition of conditions: Even when the court is satisfied with the case of the applicant, and is inclined to grant interim relief, it must consider the interest of the other side. The party at whose instance interim order is passed, should be made accountable for the consequences of such order. In appropriate cases, the applicant may be asked to furnish security for an y increase in cost as a result of delay or damage suffered due to such interim relief. “ Stay order or Injunction order, if issued, must be moulded to provide for restitution.”
Doctrine of Precedent: Interim orders have no precedential value and an applicant cannot claim grant of interim relief on the ground that in similar matters interim relief has been granted by the court.27 Judicial comity, however, requires that in similar matters, similar interim orders should normally be made.28 23. R.3, Shiv Kumar v. MCD, (1993) SCC 162. 24. R. 3-A. 25. R. 4. 26. (1994) SCC 225. 27. Empires Industries Ltd v.UOI (1985) 3 SCC 31 4. 28.Ibid.
Legal Ground for Granting Injunction: When injunction cannot be granted
When the allegations made in the application are vague or indefinite, no injunction can issue. Equally, no injunction should issue in respect of a property description of which is vague and not specific. In order to get an order of injunction, the property in dispute should be clearly identified with specific area and demarcation. In a suit for declaration of title and partition, the decree holder cannot be restrained by injunction; the proper course would be to pray for stay of further proceedings if the decree is put into execution. No injunction can be granted in matters covered by a provision made in a special enactment. Injunction cannot be granted when it interferes with performance of public duties. As earlier stated, temporary injunction is to be refused where no relief of permanent injunction can be granted. Injunction in suit barred by res ju dicata
No interim injunction can be granted when the suit is found prima facie barred by res judicata. However, in some decisions contrary view was taken laying down that at the interlocutory stage the court is only to consider whether triable issues have been raised by the plaintiff and whether there are substantial questions which need be investigated.It is submitted that where there is no doubt about the application of res judicata it cannot be said that the applicant has a prima facie case. On the other hand, when an applicant‟s possession had been found in a previous litigation, he may be entitled to an order of injunction on the strength of the previous finding. Similarly, when in a previous litigation A has been found to be the true owner of the disputed property and not B, B cannot obtain an order temporary injunction against A. In view of the earlier decision in writ petition that the plaintiff had no title, his claim for temporary injunction in respect of the suit land is not maintainable.
Temporary Injunction: Duration: Temporary injunction granted by the court pendete lite ( till the disposal of the suit) comes to an end when the suit is finally decided. If the suit is dismissed, injunction is vacated. But even if the suit is decreed, temporary injunction comes to an end. If the suit is for permanent injunction, temporary injunction granted by the court is made perpetual or permanent as a part 29
of decree passed by the court.
29. Gangappa v. Boregowda, AIR 1955 Mys 91
Status Quo: “Status Quo” means “existing condition” or “existing state of things” at any given point of time.30 The relief of status quo is as good as an injunction. Hence, principles relating to grant of injunction apply to grant of status quo also.31
Mandatory Injunction: In appropriate cases, temporary mandatory injunction can be granted by a court but such relief can be granted only in exceptional and compelling circumstances where injury complained of is immediate and is likely to cause ser\ious prejudice to the applicant which cannot be compensated in terms of money. In other words, mandatory injunction at an interlocutory stage can be granted in rarest of rare cases.32
Non- Compliance with the Interim Order: An order passed by a competent courtinterim or final- has to be obeyed without any reservation. If the party against whom such order is passed feels that it is not according to law, he can take appropriate steps to get it vacated, modified or set aside. He, however, cannot refuse to obey such order. Intentional disobedience of the direction of the court would constitute contempt of court.
Appeal: An order granting or refusing to grant injunction is subject to appeal.33 Where ex parte relief is granted by the court and the application is not decided within thirty days, the aggrieved party may prefer an appeal against such an order.
Revision: An order granting or refusing an injunction is a “case decided” within the meaning of Section 115 of the Code and hence a revision lies against such an order.34
31. Ibid. 32. Dorab Cowasji v. Coomi Sorab Warden, 1990 SCC 117. 33.Or. 43 R. 1(r). 34. Ishardass Devi chand v. R. B. prakash Chand, AIR 1969 SC 398.
Breach of injunction: Rule 2-A Section 94(c) and Rule 2-A of Order 39 provides for the consequences resulting from a disobedience or breach of an order of injunction issued by the court. The penalty may be either arrest of the opponent or attachment of his property or both. However, the detention in civil prison shall not exceed three months and the attachment of property shall not remain in force for more than one year.35 If the breach continues, the property attached may be sold and, out of the proceeds, the court may award such compensation as it thinks fit to the injured party.36
Injunction on insufficient grounds: Section 95 Where in any suit in which an order of temporary injunction has been obtained by the plaintiff on insufficient grounds, or where the suit of the plaintiff fails and it appears to the court that there was no reasonable or probable ground for instituting it, on application being made by the defendant, the court may order the plaintiff to pay such amount, not exceeding fifty thousand rupees, as it deems to be a reasonable compensation to the defendant for the expense 37
or injury including injury to the reputation caused to him.
35. R. 2-A(1). 36. R. 2-A(2). 37. Section 95.
ACKNOWLEDGEMENT I express my sincere gratitude to “Dr. Karan Jawandha” for her inspiration, expert guidance, moral boosting, continuous encouragement and appreciation which are the vital factors in successful completion of my project work. I humbly acknowledge deep gratitude towards my teacher. Thanking You.
